Autonomy and morality: What are the limits of the law?

Now that you have heard about the R v BM [2018] case and formed your own impression of it, we can examine one of the core issues that it raises. We will focus on the pressure the case puts on the law’s commitment to the value of autonomy – that is our capacity for reasoning and independent action, including also our capacity to exert control over our affairs, such as by making promises and giving consent.

The value of autonomy

Liberal democratic societies generally put a high premium on the autonomy of the individual, and its value is embedded in the law in various ways. In the UK, for example, it embedded in many aspects of legislation, from the way people think about the role of constitutional law to particular judgements in important tort cases.

When should the law interfere?

Many think that the law should interfere with our autonomy only if it’s necessary to protect others from wrongful harm. However, the power of consent is to make permissible things that would otherwise be wrongful – in the context of bodily harm, this applies, for example, to surgery, tattooing/piercing, and boxing. There is a good case, therefore, to be made that by consenting to the respective body modifications, Brendan McCarthy’s customers made the harm he inflicted morally permissible. But if that’s the case, and if the law should interfere with our autonomy only to protect people from wrongful harm, then it seems like the courts overstepped the proper limits of the law. That’s a big ‘if’, however, and people have tried to justify in various ways the courts’ reluctance to accept consent in cases involving serious harm.

The role of dignity

Some thinkers, such as Professor Dennis Baker (2012), have argued that if the harm is serious enough (both in degree and with respect to reparability/irreparability), as it may have been in R v BM, then consent does not manage to remove it wrongfulness (as it would do in less serious cases). If that’s correct, then the value of our autonomy sometimes loses out to what we can call our ‘dignity’, which in turn would require us to change our minds a bit regarding what we think the proper limits of the law are.

Task

In the video, what is the ‘big question’ relating to body modification? And how does this relate to the idea of autonomy?

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References

Baker, D. J. (2012) ‘The moral limits of consent as a defense in the criminal law’, New Crim. L. Rev., 12(1), pp. 93–121. doi: 10.I525/nclr.2009.Iz.s.93.

R v BM [2018] EWCA Crim. 560. Available at: https://www.bailii.org/ew/cases/EWCA/Crim/2018/560.html (Accessed 13 December 2021).