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

Outlining the theory – Liberty
Liberty is a theory heavily influence by John Stuart Mill. It is here that we turn to questions regarding the application of the law, in the sense of its control of the moral code of society, in so far as how it affect one’s liberty. Liberty is concerned with the answering whether the law should interfere with individual’s personal and private choices, specifically those in relation to acts that may be seen as morally wrong.

John Stuart Mill’s “object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used by physical force in the form of legal penalties, or the moral coercion of public opinion. The principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral is not a sufficient warrant” (Dimock at page 306). He goes on to say that if anyone does an act harmful to others that would create a prima facie case for punishing them, therefore imposing liability on their personal choices and liberty. In John Stuart Mill’s view, individuals must appreciate that they are living in a society (as there is no person that can be completely isolated, so far as there conduct affecting no other people) that they in fact benefit from, as they receive protection within it. In return such individuals should be bound to observe a certain line of conduct towards each other. First by not injuring the interests of another, and second by bearing one’s share of the labours and sacrifices made in efforts to defend the society.

John Stuart Mill than explains that it is justifiable when there is definite damage or risk of definite damage, either to an individual or to the public, that such a case should be taken out of the realm of liberty and handled in the morality of society or the law. Finally, though it is important to consider tyranny of the majority (tyranny of the prevailing opinion), it is also important to note that should there be an interference it is vital that checks and balances exist to ensure that it follows the stated principle, elected authority assist with this function creating a unity of interests between the governed and those being governed.

Further, the theory of liberty seeks to determine when it is justifiable for the law to impose on one’s personal choice. As though it may be clear that liberty is at the heart of society, and plays a key role in allowing a person to live out a life that is minimally intruded on, there is bound to be conflict within society. Therefore, this theory looks at four possible measures of justification to attempt to balance the personal values in liberty and the interests shared by society as a whole. They are: the harm principle, the offense principle, legal moralism and paternalism. Each will be defined in more detail below.



Harm principle
”A society is justified in restricting liberty of any of its members when this is necessary to prevent (serious) harm to others” (Dimock at page 303). The harm principle is considered to be the more reasonable justification on one’s liberty. Certainly in the eyes of John Stuart Mill, it is seen as the sole justification for infringement.

Offence principle
“Society may interfere with the liberty of its members to prevent them from causing offence to others” (Dimock at page 303). Similar to John Stuart Mill’s application of the harm principle, but distinct in that it considers an offence to more immoral in nature to society but not harmful to those engaged in the act.

Legal moralism
“Society may interfere with the liberty of its members to prevent its member from acting in ways that conflict with or undermine the moral values of some favoured groups, usually the “majority” or “society”” (Dimock at page 303). Here the issue is not of harm, but of offended moral values of the majority, and can include such examples as abortion and euthanasia. Lord Patrick Delvin defends such a view.

Paternalism
“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 at page 303). This would be in direct conflict with the harm principle championed by John Stuart Mill, as it suggests allowing society to interfere with one’s liberty for their perceived benefit. Gerald Dworkin heavily contributes to this theory. He suggests that such prohibitions on suicides and dangerous drugs, should be accepted restriction to one’s liberty as it is for their own good.

Dworkin critiques John Stuart Mill’s rejections of paternalism, as John Stuart Mill sees as incompatible with free personal choice. Dworkin states “that there is a significant range of cases in which paternalism interference with the liberty of the individuals for their own good can be justified. For, if paternalism is generally problematic because it interferes with the value of free choice, nevertheless we may be justified in restricting the freedom of individual to make decision the consequences of which are “far-reaching, potentially dangerous and irreversible””(Dimock at page 321). This can be seen as a pseudo social insurance policy to protect society and individuals, as it paternalist policy would ensure that individuals to not make potentially harmful decisions. It follows that potentially the state can infer consent to such interference as it is seen as protection.


 * Note: The above information is based off of content from pages 302-322 of Dimock's Classic Readings and Canadian Cases in the Philosophy of Law (see "Bibliogrphy" for more details)

Analysis of Liberty and Paternalism to PHS
In this section, laid out will be an analysis of how the court’s decision in PHS relates to liberty and paternalism.

Liberty
The factors of liberty are at the heat of this case. In fact this case is based on a challenge to Section 7 of the Charter, which protects the rights to life, liberty and security of the person. Here personal choice and safety is at the forefront of the majority’s decision. They grapple with a difficult moral dilemma in providing a safe space for drug users, to inject themselves with both a morally and legally conflicting substance. The choice here was ultimately to side with the individual drug using public, to allow them a safe space with medical supervision to partake in such activates. This aligns well with the principles stated under liberty. It favours the free choice of an individual, and though there is some control measures put in place, one could easily argue that they are justified under the harm principle. In the headnote the court states “Section 4(1) directly engages the liberty interests of the health professionals who provide the supervised services at Insite because of the availability of a penalty of imprisonment in ss. 4(3) to 4(6) of the CDSA. It also directly engages the rights to life, liberty and security of the person of the clients of Insite. In order to make use of the lifesaving and health protecting services offered at Insite, clients must be allowed to be in possession of drugs on the premises. Prohibiting possession at large engages drug users’ liberty interests; prohibiting possession at Insite engages their rights to life and to security of the person” (PHS, at headnote). It is clear that though prohibited substances will be used on premise that it is vital for the safety and security of the users that the health providing services exist. Further the court explains that it is important to protect the clients of Insite, as s.4(1) of the CDSA, which prohibits the possession of illegal substances directly impacts the client’s Charter protected rights (at para 97). Finally, the court states that this is not a measure of harm reduction or promoting an abstinence-based program, it is to allow Canadians to be protected under the Charter (at para 105, 110, 127). This decision allows Canadians that are struggling with drug abuse to seek help and security in the activity, with their health being the number one priority, which intern will prevent the possibility of extreme harm on these individuals as they will not have to partake in drug activity in a dangerous manner.

Paternalism
It can be argued that the majority’s decision in protecting the drug user’s health, while respecting their access to health care in activity that is condemned in society, was done for their own good. It is however, more likely that the argument advanced by the government embodied the paternalist views, in condemning the Insite establishment was for the betterment of society, and a justified interference as it was protecting further harm to those individuals and society. The government seeks to eradicate drug use, not condone it through allowing a premise that aids in drug consumption, a premise that they argue cannot even be proven to be effective (in the sense of personal choice to attend the facility) as the mental capacities of the clients is in question (at para 99, 100-101). They view drug addiction as a disease (at para 100-101).

Conclusion
It is clear the theories expressed above both played a significant role in the PHS case, and that it is more likely that the majority of the court followed a view more grounded in liberty rather than paternalism.