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

In Defence of Liberty and Paternalism
The Theorist: John Stuart Mill - Liberty and the Harm Principle

The Theory 

Mills believes that behaviors of an individual, affecting only the individual, are absolute rights that cannot be interfered with by state action[1]. He states that there is an “appropriate region for human liberty[2]” where state action will never be justified to intrude on that liberty. “The only freedom which deserves this name is that of pursuing our own good in our own way[3].” However, there is a prima facie case for limiting behaviors when the individual’s behavior harms others[4]. Protecting individuals for their own good is not sufficient to justify the limitation of an individual’s liberty. Mill’s feels that the only justification for infringement of one’s liberty arises from the liberty causing harm to others.

There are however exceptions to his absolute liberties. Mill’s believes that the right to liberty can only be applicable to persons that possess mature faculties. Mature faculties are described as the capacity of being guided to their own improvement by conviction or persuasion. Individuals who are deemed by law to be “children” do not have the required maturity to guide themselves to self-improvement, therefore lacking the required “mature faculties.” Those lacking the capacity or maturity to guide themselves, do not have the same guaranteed liberties as those with such capacities.

The Application:

The liberty in question is the parents liberty to choose, and impose their religion on their children, in contrast with the child’s liberty to life, security of person, and the right not to be deprived thereof. Government imposition of the Child Welfare Act allows for the removal of “children in need” from parent custody. This act protects this child’s liberty, while it infringes on the parents liberty.

A right to liberty can only apply to persons in possession of mature faculties. If someone is legally deemed to be a “child” they do not have the required maturity or capacity to be in charge of their liberties. Mills believes that without this maturity or capacity it is justified to grant authority over their liberties government. In this situation, the imposition of the Child Welfare Act is the government’s way taking authority over the child’s liberties.

Furthermore, Mill’s believes that an infringement of liberty will only be justified when that liberty causes harm to other members of society. In this situation the parents liberty to choose and impose their religion onto their child, resulted in the denial of proper medical treatment. This would be viewed as a liberty resulting in harm to another’s liberty. Although the child would fall into the class of people lacking “mature faculties,” the Child Welfare Act has legislated for the guarantee of child safety, and childrens liberties under section 7. Therefore, the liberty exercised by the parents would cause harm to the liberties legislated for the child, and would be justifiably limited.

The final ruling in the case was that the parents liberty was not infringed upon and so the act was in line with constitutional principles. This conclusion would be the same result that Mills would reach, although Mills would likely reach the result through a justified limitation. Had the liberty been seen as being limited by state action through The Child Welfare Act, Mills would classify it as a justified infringement based on his harm principle.

The Theorist: Gerald Dworkin - Paternalism

The Theory:

Paternalism is an “interference with a person’s liberty that is justified by reasons referring to exclusivity to the welfare, good, happiness, needs, interests or values” of that person. (Susan Dimock, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto; Pearson Education Canada, 2002) at 313.) This interference will also be acceptable when the outcome prevents harm and long term or irreversible damage to this person’s autonomy.

In instances of adult consent to restraint, there are certain conditions where it is rational for an individual to agree that others should make him act in a way that he may not see as desirable. If the choice produces irreversible and destructive changes, accepts that people can make irrational choices; that citizens are not inevitably the best judges of what is best for them or for their own liberty. The activity must be both irreversible and necessarily destructive. Also relates to decisions made under extreme psychological pressure; where the risks not adequately understood. When applying Dworkin can as the question of: would rational individuals agree to such restraints? With interference to liberty of ourselves and others at such life points?

There is a limit on paternalistic interference; must have proportionality between deprivation and restraint.
 * 1) Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.
 * 2) Look at if the potential harm outweighs the benefits of the relevant behaviour
 * 3) Examine if the proposed restriction is the least restrictive alternative for protecting against the harm.

The Application:

The court ultimately decides that the Child Welfare Act is Constitutionally valid and that the State taking temporary custody of the child was for the ultimate benefit of the child’s liberty and that paternalism in this case was acceptable. This case can be seen as an instance of adult restraint, the parent’s were going to let their child pass away because of their religious beliefs. The court see’s that this situation was an instance where the parent’s did not want the State to take temporary custody of their child, and this action would be undesirable and challenge their autonomy. But the court was more concerned about the child’s liberty since she did not have a choice in medical treatment. The decision made by the parent’s to not go ahead with the blood transfusion would have resulting in irreversible damage to their child, she would have passed away. The State and court saw this decision has unnecessarily destructive.

The parent’s were under extreme psychological pressure, their child was sick and the only option to save her would go against their religion. In their state of distress they choose to follow their religion, they might not have been able completely comprehend the outcome of their decision. Therefore the State implementing temporary custody can be seen as constitutional because while it was intervening on the parent’s liberty and freedom of religion it was ultimately saved because of the Act saving the child’s autonomy.

The overall question to ask is would rational individuals agree to such restraints? With interference to liberty of ourselves? The court says that the notice given by the State was reasonable, the wardship was initially limited to 72 hours, which enabled the parties to come back with evidence to combat the action. The court says that parental duties are supposed to be in accordance to the best interests of the child. If the parent’s beliefs invades the best interests of the child, then these actions will not be protected by the right to liberty is section 7 of the Charter. The court states that there is no room within section 7 to infringe upon the child’s right to autonomy. In conclusion the court concludes that since the Child Welfare Act is Constitutionally valid, that the State’s actions were reasonable since the welfare and liberty of the child was at stake.

The court can also be seen applying the following application of paternalism to make sure that the State was balancing deprivation and restraint.


 * 1) Must look at the behaviour governed by the proposed restriction and if it contains some sort of harm that a rational person would want to avoid.
 * 2) Look at if the potential harm outweighs the benefits of the relevant behaviour. The harm was the child dying, and since the State wanted to protect the autonomy of the child, the temporary custody of the child was acceptable. The temporary custody and restriction on the parent’s autonomy was justified because the potential of the child’s death would have been permanent.
 * 3) Examine if the proposed restriction is the least restrictive alternative for protecting against the harm. The State could have taken away the child permanently from the parents, however it was just a  temporary custody agreement, which can be seen as the least restrictive approach