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

=  Liberty-Paternalism  = Liberty

Personal liberty is presumed to be free from legal restrictions. However, liberty must be balanced against competing interests. Therefore, questions arise as to when and why, should the law interfere with liberty and when is interference with liberty justified.

There are four possible justifications for the law’s restriction on liberty. The harm principle states that liberty should be restricted to prevent serious harm to others. John Stuart Mill argues this to be the only legitimate justification for law restricting liberty. Paternalism justifies the law’s restriction on liberty to protect individuals from harm due to the exercise of their own liberty. Mill rejects this justification except in the case of children and those without mature faculties. Legal moralism states liberty should be restricted to ensure individuals’ actions do not undermine society’s morals or values. The offence principle justifies restricting liberty to ensure individuals do not offend other members of society.

According to Mill, society needs authority to prevent violent anarchy. However, authority itself must be limited and controlled. One way to limit authority is through liberty. Certain liberties or rights such as political ones are recognized as being immune from government authority, constitutional checks, and authority being given temporarily by the people to the government through election. The potential problem of tyranny may arise, the government is elected by the majority therefore has majority support and has the ability because of this support to limit minority liberties.

=  Application to K.L.B. v. B.C.  =

Liberty

The negligence law restricts individual choice by requiring a certain level of conduct from the Minister, social workers, and foster parents. Therefore, the negligence laws restrict liberty and must be justified. Mills would find this restriction on liberty to be justified through the harm principle. The negligence law requires these individuals because of the duty of care that arises to conduct themselves in reasonable ways to avoid harm to the children under their care. This restriction on liberty can also be justified by legal moralism. Legal moralism would find society values protecting children from abuse and harm from those charged with caring for them. Therefore, the restriction on liberty is justified in order to ensure these individuals’ actions do not undermine society’s value in protecting children.

The Protection of Children Act also restricts the liberty of the Minister and the social workers. The act actually restricts liberty more than the negligence law. The act requires the Minister and social workers to follow the specific requirements in the act. Whereas the negligence law provides a general principle that a duty of care is owed and does not require certain specific actions from the Minister and social workers, it allows the Minister and social workers to determine what is reasonable themselves. Therefore, negligence law although restricts liberty it does so in a way that allows the individual to still exercise some liberty in their conduct. Mill would find this restriction on liberty to be justified due to its purpose of preventing harm to the children. Legal moralism would also find this restriction to be justified since society values protecting children from harm from those responsible for them.