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

Outlining the theory – Liberty
On Liberty, published in 1869 John Stuart Mill's largest contribution to the Liberty theory which encapsulates many ideas contained in his social utilitarian philosophy. In his philosophy he delves into how the application of the law, and its connections to morality, can affect an individual's liberty. This approach is concerned with answering the questions:

How should the law govern an individual's behavior?

What role does morality play in that governance?

What constitutes moral wrong?

What limits can be put on an individual's liberty?

Dimock explains the theory succinctly in stating, “[The] 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). Mill goes on to say that if an act is harmful to others, that it would create a prima facie case for punishing them. This would be an imposition on their personal choices and liberty as a result of their immoral behavior. Individuals must appreciate that they are living in a society. No person can be completely isolated and therefore must be conscious of his or her behavior in respect to others. Individuals should be bound to conduct themselves in a certain way towards each other. One should not injure the interests of another, and furthermore an individual should bear his or her share of labours and sacrifices made in efforts to defend the society.

John Stuart Mill then 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. He contends that, though tyranny of the majority garners important consideration (tyranny of the prevailing opinion), checks and balances should exist to ensure that it follows the above stated principle. The elected authority assists with this function by creating a unity of interests between the government and those being governed.

Finally, the theory of liberty seeks to determine when it is justifiable for the law to impose on, or impede, one’s personal choices. Though it may be clear that liberty should be a foundational principle at the heart of society, it must be recognized that there is bound to be conflict of interests in society. John Stuart Mill looks at four possible measures of justification to impose limits on one's liberty. These measures are:

The Harm Principle

The Offense Principle

Legal Moralism

Paternalism

We will analyze each of these four measures in the analysis 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). If you harm others and deprive them of their liberty, then society is justified in removing yours. Harm to others becomes a guide to whether or not one's actions are societally acceptable behaviour. John Stuart Mill believes this is the only legitimate justification in restricting an individual's liberty.

Offence principle
John Stuart Mill's harm principle is a distinct theory from the offence principle. Although an offence may cause harm, harm is not necessary for it to be an offence. This theory can restrict an individuals liberty and justify it by ensuring other members of society are not unduly offended by one's actions. “Society may interfere with the liberty of its members to prevent them from causing offence to others” (Dimock at page 303).

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). Legal moralism requires an identification of what society deems to be immoral. Once morality of a rule or law is determined, this theory believes that individual liberty can be restricted when individuals would engage in acts to offend these morals. However what complicates this theory is how to best determine morality. Typically, it is determined through majority consensus by looking at community standards. John Stuart Mill finds this theory of limiting liberty troubling, calling it "tyranny of the majority".

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). Another justification for law's restriction of individual liberty is paternalism. Paternalism justifies restriction of individual liberty in order to protect individuals from harm caused by the themselves. John Stuart Mill is adamantly against the paternalism theory as he believes individuals will act in their own self interest. A prohibition on drug use in society would be deemed a paternalistic perspective as it is infringing on an individuals liberty in order to protect them from causing damage to themselves.

Dworkin critiques John Stuart Mill’s rejections of paternalism. John Stuart Mill sees it 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 individual 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).


 * 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 "Bibliography" for more details)

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

Liberty
The factors of liberty are at the heart of this case. This case is based on a challenge to s. 7 of the Charter, which protects the rights to life, liberty and security of the person. Here, personal choice and safety are 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 an immoral and illegal 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 activities. 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. The court states “s. 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 although prohibited substances will be used on the premises, it is vital for the safety and security of the users that the health providing services exist.

In this case, the subject of analysis is that of a drug user. An exception to the rule of liberty that Mill puts forward is that of the person without possession of mature faculties. For example, persons who are legally recognized as being children. The point here is that a person possessing mature faculties has the ability to be guided to their own improvement by society. In PHS, it could be argued that a drug addict, due to their illness, is not capable of their own self government and that they qualify as an exception to the rule. Mill would argue that society had its chance to sculpt these individuals at childhood, however, and that society should abandon its endeavour with these persons - that Insite is not abiding by the parameters laid out for intervention of authority. This argument, however, disregards those with a different background (i.e. without the ideal upbringing) and ultimately a "mature" person hampered with mental illness.

The court explains that it is important to protect the clients of Insite, as per s.4(1) of the CDSA, which prohibits the possession of illegal substances and which 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 addiction to seek help and security. With safety and health being top priorities, it will help 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 for an activity that is condemned in society - was done for their own good. It is, however, more likely that the argument advanced by the government in condemning the Insite establishment embodied the paternalist view. As it can be argued that it was for the betterment of society, and a justified interference, as it was preventing from further harm to those individuals and society. The government seeks to eradicate drug use, not condone it by allowing a facility that aids in drug consumption. A facility, they argue, that cannot even be proven to be effective as the mental capacities of the clients are in question (in the sense of personal choice to attend the facility) (at para 99, 100-101). They view drug addiction as a disease (at para 100-101).

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.

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