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

= Liberty and Paternalism =

John Stuart Mill presents the justification for the theory of liberty as a legal perspective. Rather then view the morality of the law, as legal positivists and natural law theorists do John Stuart Mills proposes that we ask, “When law should interfere with private choices”. The answer to this question for John Stuart Mills is the law should interfere with private choices when restrictions on ones liberty are justified. Restrictions on ones liberties can be justified because there are other values in society that one’s liberties must be balanced with.

Liberty in Trinity Western University v British Columbia College of Teachers
The philosophical perspective of Liberty is represented in Trinity Western University v. British Columbia College of Teachers (Trinity Western University) in a direct way. Trinity Western University is a battle between the Freedom of religion s. 2 (a) of the Canadian Charter of Rights and Freedoms and s. 15 of the Canadian Charter of Rights and Freedoms, the right to Equality. Freedom of religion, in the case of Trinity Western University, would be the liberty that the state is trying to restrict. Individuals have the right to right to choose their religion and the freedom to choose which school to go to even if the morals are contrary to the majority. Trinity Western University argued that their religious freedom allowed them to have their covenant (make a link to the covenant) and that that should not be the determining factor in deciding whether the British Columbia College of Teachers (BCCT) allows them to proceed with a full teachers program promoting these views  (Trinity Western University, at para 2 and 28). The BCCT refused exclaiming that this was contrary to the public’s interest to allow teachers to engage in discriminatory practices against homosexuals (Trinity Western University, at para 5). The question is whether a liberty theorist would find that the legal authority justifiably restricts this liberty.

The limitations of the Authority
Similar to a liberty theorist the courts determined whether the British Columbia College of Teachers had the authority to restrict a universities liberty to eradicate discrimination (Trinity Western University, at para 12). Where the courts differed from a liberty theorist is in determining the specific section of the law. A liberty theorist would look to the limits of the authority. Authority is limited by specific zones restricted from the authority; constitutional checks on the governmental authority; and the authority delegated by the people. In Canada the specific zones restricted from the authority are articulated in the Constitution. The zone at issue in this instance is s. 2 (a) of the Canadian Charter of Rights and Freedoms, the freedom of religion (Trinity Western University, para 28). However, in Canada there are competing values in the Charter, which protect both individuals liberty and societies interest (Trinity Western University, para 31). Therefore neither of the interests is absolute.

The British Columbia College of Teachers was granted its authority from the British Columbia Ministry of Education (Trinity Western University, para 2). Since the British Columbia Ministry of Education is a constitutionally valid government they fall under the constitutional requirements required by legislation. One can also conclude that since the British Columbia Ministry of education is also a valid government organization they acquire their power from the citizens of British Columbia. Due to the British Columbia Ministry of Education being a valid authority one can conclude that British Columbia College of Teachers is a valid delegated authority.

Accepted Justifications
The accepted justifications for restrictions on ones liberty are the harm principle; paternalism; legal moralism, and the offence principle. The harm principle: is the belief that the restriction of ones liberty is justified to prevent serious harm to others. Paternalism: to restrict ones liberty to protect the person wanting to utilize that liberty from themselves. Legal Moralism: the restriction of an individual’s liberty where those liberties would undermine social or communal values, and the Offence principle: to restrict ones liberty to ensure others are not unduly offended.

The Harm Principle
If John Stuart Mill’s were deciding the case of Trinity Western University he would focus on the harm principle. The Supreme Court of Canada focused on the same issue. The Supreme Court of Canada looked to the harm that discrimination of homosexuals would cause (Trinity Western University, para 18). John Stuart Mill’s would argue that the harm required is a significant harm. Since the British Columbia Teachers association were not able to prove that teachers would discriminate against their students and therefor had not proven a significant harm this was not satisfied (Trinity Western University, para 18). The Supreme Court found that there was no harm but explained that the British Columbia College of Teachers had the ability to discipline teachers who do discriminate against their students (Trinity Western University, para 37). A Legal theorist looking to the harm principle would come to the same conclusion. They would conclude this because one cannot restrict an individual’s liberty unless preventing a serious harm.

Paternalism
Paternalism would not be an appropriate justification for infringing the liberty of Trinity Western University. The goal of a paternalistic justification is to protect oneself from the harm they will commit to themselves. Trinity Western University would not be committing harm to them in a serious way. Dworkin, attempted to expand John Stuart Mill’s paternalism approach. Dworkin expands the paternalistic justification as including incidental prevention of harm to third parties. Drowkin also explains that a paternalistic interference can be justified to prevent long term or irreversible damage. One may argue that any teacher deciding to go to Trinity Western University would be increasing their risk to potential harm of punishment for discrimination. This is still unsatisfactory to justify using the paternalistic principle. Although paternalistic justifications for limiting Trinity Western Universities liberties were not found in this analysis this does not mean that there are no paternalistic justifications. Had there been a paternalistic justification one would need look to the proportionality of the limit. The British Columbia College of Teachers wanted to keep the teaching program limited to Simon Fraser University educating the Trinity Western teaching students for their last year (Trinity Western University, at para 5).

To determine the proportionality of the limit two questions must be asked: The first question is how significant is teaching the Trinity Western University students in this department for the entirety of their degree. The second question is whether the proposed limitation is the least restrictive option. When determining the first question one could argue that a university prides itself in educating its students fully. This can be seen in regards to the prestige of a university as well as the economic benefits of a university. Therefore one would conclude that the educating of the full program would be significant to the autonomous self of Trinity Western University.

In regards to the second question the British Columbia College of Teachers proposal for the least restrictive measure is not satisfactory. The reason it is not the least restrictive method is because of the Ministry of Education’s ability to discipline teachers for discriminatory behavior. As there is a protective method that does not require the restriction of Trinity Western University’s liberties that would be the more appropriate approach.

Legal Moralism and Offence Principle
Legal Moralism would be an inappropriate justification for infringing Trinity Western University rights because the competing issues are both social values (the freedom of religion in this instance and the individuals right to liberty) As was explained above the freedom of religion and the right to equality are equally important to Canadian citizens (Trinity Western University, para 18). The social value for equality would only be satisfied if it could prove it was truly undermining that social value. In this case that is unlikely to be possible as the court concluded the evidence was not conclusive (Trinity Western University, para 36). The Offence Principle looks to restrict an individual’s liberty to ensure no one is unduly offended. A legal theorist may believe that discrimination may unduly offend an individual and therefore allow a restriction to ones liberty. However, Trinity Western University is not the case to justify restricting ones liberty. This is because the possibility of unduly offending an individual is unproven. British Columbia College of Teachers was unable to prove that discrimination would occur (Trinity Western University, para 18). Therefore it is not proven that anyone will be unduly offended but is merely a possibility. Therefore the Offence principle is not justified.

Conclusion
Following a liberty legal perspective would come to the same conclusion as the Supreme Court of Canada. This would occur while following the harm principle and finding not a serious amount of harm but reassuring the British Columbia College of Teachers they still have the ability to discipline if the harm occurs. No other justification would come to a more satisfactory restriction.