Autonomy and Beyond – Voluntariness in the Light of Lived Autonomy
In this article, we aim to introduce and discuss the use of an everyday life-based understanding of autonomy that recognises the fact that a person’s autonomy is constantly changing, rather than stuck in given categories. We call this understanding of autonomy lived autonomy and suggest it be used as an analytical tool in legal research. We use a flower to symbolise the lived aspect of autonomy to underline how autonomy is constantly changing and thus demonstrate that person’s autonomy is elastic. A person’s autonomy can be diminished or expanded over time due to relational, time and spatial boundaries, i.e., everyday life that consists of an endless variety of aspects. Inspired by Smith, we use the concept of everyday life perspective to capture the human being as a subject rooted in everyday life. In addition to Smith’s daily routines and activities, we add cognitive and bodily memories, as well as symbols, patterns, knowledge and experiences. These are aspects of everyday life that we use as active subjects to express, for example, will, desire and needs. These aspects, perceived as well as inherited and shared memories, knowledge and experiences, can also be obstacles to expressing our will, desire or need. The concept is described and developed with the new consent-based regulation of rape as an example, in particular in relation to the criterion of voluntariness. The article starts by placing the concept of autonomy in a broader context and introduces autonomy as a concept in philosophical and legal theory, followed by a feminist critique of the traditional liberal understanding of autonomy. Then, the everyday life perspective is introduced to develop the understanding of the concept, from the traditional one towards an everyday life-based understanding of autonomy, lived autonomy. As an example of how lived autonomy can be used as an analytical tool in legal research, we apply the concept in relation to the new requisite of voluntariness in the Swedish rape legislation that came into force July 2018. Additionally, the everyday life-based understanding of autonomy also has a communicative function, and as such, the concept serves as a link between the local context and at the same time as part of an international academic debate of one of the core issues of within legal scholarship. But also, as a link between law and reality in both local and global perspective.
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Retfærd. Nordisk Juridisk Tidsskrift, 44 (3 & 4 /170), 35-49