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

Liberalism
Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks when and why the law should interfere with private choices. That is, when are restrictions on individual liberty justified? Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (Dimock 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (Dimock 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws.

Liberalism identifies four justifications for restricting the liberty of individuals by law:
 * 1.	The harm principle states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (Dimock 303).  It is easy to comprehend how this principle is advantageous to society by preventing harm to others.  JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.
 * 2.	Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (Dimock 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.
 * 3.	Legal Moralism allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (Dimock 303).
 * 4.	The Offence Principle allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.

JS Mill
JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (Dimock 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.

Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury.

The Harm Principle; Application to Cuthbertson v Rasouli
Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19.

Using the harm principle, that is, the liberty of an individual can be justifiably interfered with so long as the individual is causing harm to others, “Cuthbertson” could have very different readings.

Mature Faculties

Assuming Rasouli is not harming others: If the position is taken that Rasouli is not in possession of mature faculties, then interference can be justified. Having a substitute decision maker ultimately decide his fate, Mill would view this as Rasouli being protected against his own actions as well as against external injury. But the line is not clear as to how far this would permit interference. If society is able to make these decisions, then it would be perfectly appropriate to have a SDM make decisions, but enable the doctors to appeal to a board if the decision is not thought to be the correct one. The multiple levels of analysis to determine what is in the best interests of the patient would be a positive outcome and likely be approved by Mill. But, if it is viewed as a temporary assignment of Rasouli's autonomy to his SDM, the doctors would have no right to interfere or appeal to the board and the SDM's decision would have to be the ultimate outcome. However, it is not likely that an analogy would be drawn between Rasouli, in his condition, and children, for example as he was in possession of mature faculties at one point but is no longer functioning without assistance due to additional issues.

Harm to Others

A straight reading of the harm principle would suggest that Rasouli’s individual liberty, assuming he is in possession of mature faculties, should not be interfered with, as he is not causing harm to others. Unless he is causing harm, by the mere fact that the resources are being used for him and not other needy people. If this is causing harm, then it would be a justifiable interference with individual liberty.

Paternalism: Application to Cuthbertson
From above; Paternalism suggests that a society is justified in restricting the liberty of any of its members when this is necessary to prevent the person whose liberty is being restricted from harming him or herself (Dimock 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed to exercise full liberty based on their actions.

The Decision in Cuthbertson would be hard to align with Paternalism. Even though, in this one instance, the SDM decided to continue care, Paternalism would only be concerned with keeping the patient alive. That is, that harm that may result from care or deterioration could never outweigh the harm that will result from ending care, that is, death. In this instance, Paternalism would not be able to determine who has the authority to make the decision, but would always favour continuing care over the possible ending of a life.