A cooperação processual no modelo constitucional de processo
| Autor | Luis Gustavo Reis Mundim |
| Páginas | 75-101 |
A COOPERAÇÃO PROCESSUAL NO MODELO CONSTITUCIONAL
DO PROCESSO
PROCEDURAL COOPERATION IN THE CONSTITUTIONAL MODEL
OF THE PROCESS
LUIS GUSTAVO REIS MUNDIM
1
RESUMO: O presente artigo objetiva apresentar a cooperação insculpida no artigo 6º do CPC/2015 a
partir do modelo constitucional de processo, tendo por base o princípio do contraditório como garantia
de influência e não surpresa. O procedimento metodológico utilizado consistiu na revisão bibliográfica
acerca do processo constitucional e da cooperação processual. A proposta de desenvolver um estudo
sobre a cooperação processual no modelo constitucional de processo, teve como motivação a
visualização de que autores tem utilizado a cooperação processual para dar sustento a concepções que
reforçam o solipsismo judicial e aumentam os poderes do Estado-Juiz, o que não coaduna com os
ditames do Estado Democrático de Direito. Para tanto, fez-se uma análise acerca do processo
constitucional, compreendido como pilar do Estado Democrático de Direito e balizado pela articulação
entre contraditório e fundamentação das decisões. Analisa-se, também, as normas fundamentais do
CPC/2015 que se afeiçoam ao processo constitucional. Desta feita, análise da necessária leitura da
cooperação processual pelo princípio do contraditório possibilita avanços na legislação processual, eis
que esvazia o monopólio da interpretação do direito pelos juízes e tribunais, contribuindo para a
criação de um ambiente comparticipativo. Atingido esse objetivo foi possível realizar uma crítica às
vertentes da cooperação processual que ainda mantém o juiz como supra parte e concluir que o
princípio do contraditório e o processo constitucional são os fundamentos democráticos da cooperação
processual no Código de Processo Civil de 2015
PALAVRA-CHAVE: cooperação processual; modelo constitucional de processo; código de processo
civil; estado democrático de direito
ABSTRACT: the present article aims to present the cooperation inscribed in article 6 of the CPC/
2015 from the constitutional model of procedure, based on the principle of contradictory as a
guarantee of influence and not surprise. The methodological procedure used consisted of a
bibliographical review about the constitutional process and procedural cooperation. The proposal to
develop a study on procedural cooperation in the constitutional process model was motivated by the
visualisation of which authors have used procedural cooperation to support concepts that reinforce
judicial solipsism and increase the powers of the Judge State does not conform to the dictates of the
Democratic Rule of Law. For that, an analysis was made of the constitutional process, understood as a
pillar of the Democratic State of Right and marked by the articulation between contradictory and the
basis of decisions. It also analyses the fundamental norms of the CPC/2015 that are attached to the
constitutional process. This analysis of the necessary reading of procedural cooperation by the
principle of adversarial law makes it possible to make progress in procedural law, since it empowers a
monopoly on the interpretation of law by judges and tribunals and contributes to the creation of a
shared environment. Having achieved this objective, it was possible to criticise the aspects of
procedural cooperation that still maintains the judge as the above party and conclude that the principle
of adversary and the constitutional process are the democratic foundations of procedural cooperation
in the Code of Civil Procedure of 2015.
KEYWORD: procedural cooperation; constitutional process model; civil process code; Democratic
state
Mestre em Direito Processual pela Pontifícia Universidade Católica de Minas Gerais – PUC/MINAS. Pós
1
graduado em Direito Processual pelo Instituto de Educação Continuada, IEC-PUC/MINAS. Bacharel em Direito
pela Pontifícia Universidade Católica de Minas Gerais. Advogado
Revista Acadêmica da Faculdade de Direito do Recife, vol.89, n.02, jul.-dez. 2017
! 75
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
Recebido em 12/09/2017
Aprovado em 08/12/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
1 INTRODUÇÃO
A Constituição da República trouxe em seu texto os direitos e garantias fundamentais
e, dentre estes, as garantias processuais. Sob essa perspectiva há aproximação do estudo do
construção do Estado Democrático de Direito.
O presente trabalho, então, adota como marco teórico o processo constitucional e
março de 2015) apontando seus avanços e retrocessos. Para tanto, optou-se pelo estudo
específico da cooperação processual, prevista no artigo 6º da referida legislação.
Assim, na primeira parte do trabalho, estudou-se o processo constitucional como pilar
do Estado Democrático de Direito, que é a junção entre Estado de Direito e Democracia, em
que o povo é o legitimador dos atos estatais. Já o processo constitucional compreende-se
como garantia fundamental formada pelos princípios constitucionais que possuem aplicação
dinâmica.
Examina-se, então, o contraditório e a fundamentação das decisões como base da
concretização do processo constitucional, na qual se demonstra o necessário entrelaçamento
entre os princípios, o que permitirá ao povo a participação na construção dos
pronunciamentos decisórios.
O novo Código de Processo Civil e sua relação com o processo constitucional é
examinada na parte final do primeiro capítulo, com a análise de alguns avanços e retrocessos
atinentes às normas fundamentais.
A segunda parte do trabalho dedica-se à análise pormenorizada da cooperação
processual, a fim de se mostrar que a leitura adequada de tal regra é realizada pela estrutura
quadrinômica do contraditório, a fim de amoldar-se ao processo constitucional.
A cooperação, então, traz enormes avanços à legislação processual, pois ao ser
entendida como a comparticipação advinda do contraditório, a cooperação permitirá maior
controle e fiscalização da atividade judicante, além da adequada participação das partes na
construção da decisão.
Apesar dos avanços, a cooperação ainda pode ter interpretações deturpadas e fora do
modelo constitucional de processo, o que foi objeto de análise da parte final do trabalho. A
Revista Acadêmica da Faculdade de Direito do Recife, vol.89, n.02, jul.-dez. 2017
! 76
4
Volume 89, número 01, jan-jun. 2017
Why Individual Freedom and the Autonomy of Law
Stand or Fall Together
Bjarne Melkevik1
Åsbjørn Melkevik2
1 Two Kinds of Autonomy – Legal and Individual
There is, in legal philosophy, an ongoing debate about the autonomy of law, that
is, about the extent to which law is distinguishable from some other phenomena. The
dominant views, today, all understand law as fulfilling a certain instrumental role. Justice
and efficacy, then, are probably the most common relational others to law. For example,
it is common to say that the law should further a certain understanding of distributive
justice – this is the view preferred by philosophers such as John Rawls and Ronald
Dworkin. Others have argued for the efficacy of the law as with the law-and-economics
approach most famously championed by Judges Frank Easterbrook and Richard Posner.
This paper argues for a radically different understanding of the law, as it explains why
the law should indeed be autonomous. The question, however, is not whether the law is
actually autonomous or not – it is obviously not, as the law is too often the plaything of
various lawgivers. The real question is the following – do we want to be autonomous, as
individuals? The answer is obviously yes, individual freedom being a universal value,
and therefore, this paper argues, the law should also be autonomous. There is, as we will
1 Doctorat d’État in Legal Science at University Paris 2 – France. Professor at the Faculté de Droit –
Université Laval /Canada.
2 Ph.D. in political studies, Queen`s University. Post-Doctoral Fellow-in-Residence at Harvard University.
Autores convidados
Recebimento em 27/06/2017
Aceito em 07/07/2017
Para continuar a ler
PEÇA SUA AVALIAÇÃO