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

Liberty
John Stuart Mill proposes that legal philosophers stop asking what the law is and start asking when the law ought to be used to enforce the moral code of society. He believes that since the law is used to regulate human behaviour, people should be more concerned with the limits of law and poses the following: when are restrictions on the liberty of individuals justified?

Mill argues that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent serious harm to other people. He rejects the principle of paternalism and the idea that it is okay for the law to restrict or prevent a person from harming themselves such as by way of suicide or an addiction to bad habits. An individual, Mill states, knows what is best for him or her self and should be free to do what they want even if others disagree. Additionally, a person should not be punished for thoughts or beliefs that he or she has unless they are injurious to others.

Application to A.C. v Manitoba
Although Mill emphasizes the values of liberty and freedom to strengthen the morality of society, it is not likely that he would agree with the majority or the dissent of this case. This is because they are both focused on deciding the level of the autonomy a child is entitled to with respect to his or her own medical treatment and why. According to Mill, these values are only meant to apply to humans with mature faculties and the capacity for rational choice – not to young persons below the legal age. Children are incapable of self-government.

While some may argue that Mill does or could be convinced to agree with this case, as the court ruled that autonomy will only be awarded to a child who can prove they are a “mature minor” capable of rationality, it would probably be too difficult. In later chapters of his doctrine, Mill goes on to stress the necessity of school for all children. He contends it is only through proper education that a child will develop the appropriate traits necessary for the enjoyment of liberty. Furthermore, a child can only exercise autonomy in a rational way when they are taught how.

If anything, Mill would agree with the premise of ss. 25(8) and 25(9). He would also agree with actions of the Director of Child and Family Services and that A.C. was a “child in need of protection.” Mill would argue that “16 years of age” is the designated, minimum age in the Act for a reason. This is the age that lawmakers deemed a child to be ‘educated’ in terms of directing medical treatment and at 14, A.C. does not meet this requirement. According to both Mill and the Manitoba legislators, A.C. still has a couple more months of education to go before she her faculties are mature enough to make such a decision. Though the courts sought to analyze this issue further, Mill’s analysis of this matter would end here because A.C. is without doubt, a child who is incapable of knowing what is in her best interest.

Mill would support this assertion by reiterating the main point of his thesis: power can only be exercised over an individual, against his will, when it prevents serious harm to other people. In this case, the decision A.C. wanted to make would arguably cause emotional harm and damage to the other people in her life. This includes her doctor, her parents and many of her friends.

Paternalism
Gerald Dworkin (not to be confused with previously mentioned legal theorist, Ronald Dworkin) disagrees with Mill and contends that interference with a person’s personal liberty for the purpose of self-harm is justified when it is for his or her own good. Further, paternalistic intervention will be permitted if the consequences of an individual’s free choice are “far-reaching, potentially dangerous and irreversible.” Dworkin argues that paternalism is comparable to a social insurance policy as it is a safeguard that serves to protect each consenting person in society from damaging his or her own personal autonomy.