Liberty and Paternalism
The concept of Liberty questions the circumstances in which the laws within society should rightfully apply. The theory focuses on the importance of individual liberty and the necessity for justification of laws that impede or limit those rights. Concepts for justifying the law’s restriction on individual liberty are as follows: 1) The Harm Principle believes limits on liberty are only justified when the restriction prevents serious harm to others. John Stuart Mill believed this was the only acceptable reason to limit the liberty of individuals. 2) Paternalism provides that a restriction of individual liberty is justified when it protects that person from a harm that they would have suffered as a result of the exercise of that very liberty. 3) Legal Moralism holds that the restriction of an individual liberty is required in order to prevent their actions from undermining ‘social’ or ‘community’ morals and values 4) The Offence Principle believes that the restriction of an individual liberty is justified in order to ensure others are not unduly offended by the actions of a party.
Analysis of Case - Harm Principle & Paternalism:
John Stuart Mill believed that the individual was the person best suited to make decisions related to their own life. Although he did recognize that some laws were necessary in order to prevent violence and anarchy within a society, Mill believed it was important to restrict those laws that infringed on the liberty of individuals. In the case of Little Sisters the Customs Act prevents the owners of Little Sisters Book Store from importing materials they wish to sell in Canada. Mill would only find this limit of the liberty of the bookstore justifiable if it conformed to the Harm Principle and the limits were required in order to protect the majority within Canada.
With reference to Butler, the Court in Little Sisters notes that the restriction on importing materials does not discriminate against the gay and lesbian community, but rather, relates to harm formally recognized as incompatible with proper functioning of society. Mill believed it was important to uphold liberty of thought, feeling and expression of the individual with mature faculties. Little Sisters Bookstore argued that the targeting of their materials by Customs agents restricted these abilities. However, since the test provided in Butler dealt with harm to society, John Stuart Mill may have recognized the ability to restrict some rights in order to prevent harm to the majority.
One issue Mill’s would likely have with the Little Sisters case, is that much of the analysis on whether or not the liberty of a group would be restricted (i.e. refusing access to imported materials) was done by parties (Customs agents and individual judges) not controlled or accountable to the public at large. Mill’s believed that the delegation of powers within society provided an interest between those doing the governing and the group they governed. It was this relationship that he believed would serve to limit the infringement on individual’s rights and liberties. In the case at hand, Mill would likely agree that those deciding on whether or not a liberty would be restricted were too far removed from the individuals within society.
In contrast to the Harm Principle, Paternalism provides that restrictions to individual liberties can be justified when the restriction serves to protect the individual from a harm they would suffer due to exercising their liberty. The Customs Act along with the prohibitions under the Criminal Code, restricted the information accessible to the public. If this information was one that was deemed to be capable of harming them, it might have been justifiable under Paternalism. However, the court found that many of the materials denied by Customs agents were actually already accessible in Canada through various means including local libraries. The inconsistent nature of the Customs agents and clear targeting of the Little Sisters Bookstore makes it hard to justify a restriction of liberty under the lens of Paternalism.
In a 6 to 3 decision, the Supreme Court of Canada held that the law did violate the Section 2 Charter Rights of the Little Sisters Bookstore, but was saved under Section 1. In true Libertarian fashion, Mill would view the Charter as a constitutional check designed to limit governmental authority over the individual. Further, the role of judges is to uphold individual liberty against intrusions by the state. In the decision by the court, we do see a justification of the law in place. However, the court also recognizes the issues with the administration of the Customs Act and requires that the discriminatory abilities within the system be remedied. The court does provide that the onus provision, requiring the importer to prove that the materials are not obscene, is struck down. These actions thereby limit the ‘tyranny of the majority’ that can occur in an uncontrolled environment and assist in maintaining the liberty of those within Canada.
 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69  2 S.C.R. 1120 at 4.
 Ibid, at para 102.