Course:Law3020/2014WT1/Group I/Liberty-Paternalism

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Natural Law Positivism Separation Thesis System of Rights Liberty-Paternalism Law as Efficiency Feminist Jurisprudence Home (E. (Mrs.) v. Eve)


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The theory of liberty and paternalism is not concerned with the question of what is law, so much as it is preoccupied with deciding the extent law should interfere with personal autonomy. Mill believes that interference with personal autonomy through law is justified when it is necessary to prevent serious harm to others, this is known as “The Harm Principle”. Mill also recognizes other justifications for example, Paternalism, Legal Moralism and The Offence Principle however, he does not see these as being as legitimate as the Harm Principle.

The Harm Principle establishes that interference with ones personal autonomy is only justifiable when it is in the interest of protecting others. This principle however, according to Mill, is only applicable to the personal autonomy of those possessing mature faculties. Mill defines mature faculties as having the capacity to be guided toward improvement by reason, conviction and persuasion. People possessing these mature faculties have the ability to behave properly and contribute to society and therefore should have their autonomy protected.

E v. Eve

In the case of E v. Eve it was found that though she did not possess what Mill would identify as mature faculties her personal autonomy should still very much be protected. This decision can both fall within Mill’s theory and be critical of it.

On the one hand Mill values the right to personal autonomy above all other things and always operates under the presumption that individual liberties should not be restrained. He sees law as a protection from the “Tyranny of the Majority” and emphasizes it’s importance in protecting the minorities within society. Eve would constitute as part of this minority, as she fails to possess adequate intelligence to raise a child or operate completely independently. Mill would therefore see her rights of protection against the majority as being of the upmost importance and would thus said with the courts judgement.

In contrast to this Eve would also fall under Mill’s exception to the rule as she fails to possess the mature faculties required for the protection of her autonomy. In addition it could be argued that by not interfering with her autonomy and allowing her to reproduce, could cause harm to others, in particular her mother. This harm according to Mill would justify an interference in her personal autonomy, so as to protect her mother from the burden of raising an unwanted child.

Parens Patriae

The court further follows Mill's requirement of mature faculties in their application of Parens Patriae which states that the state may interfere with a person's autonomy when it is in their best interest and may operate as a caretaker or guardian over that individual. Though they found that this was required in Eve's case they did not find in favour of her sterilization. This is because the court determined that the Parens Patriae doctrine is to used only in the interest of the ward and not in the interest of protecting other individuals. This both adapts Mills theory and dismisses it. A full application of Mill's Harm Principle would mean that the Court would have applied Parens Patriae and agreed to the sterilization of Eve as it is in the interest of reducing harm to her mother and society as a whole.

In conclusion I believe that the courts maintained Mill's emphasis on personal autonomy in their decision and dismissed his mature faculties requirement. This allowed for them to protect Eve's individual autonomy.