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

Introduction
Instead of focusing on the essence or "law-ness" of law itself, John Stewart Mills and Gerald Dworkin's theories of Liberty and Paternalism focus more on the people who are affected by the laws and how the laws should affect their rights. Furthermore, they focus on how people should engage with the law and how the law will affect them and their capacity as rational actors within the legal system. Although both men recognize the importance of autonomy as being fundamental to the human condition, both of them recognize that there may be some need for limits. As we will discover, both theories are fraught with possible issues. On the whole though, they provide valuable insight into both Granovsky's Case, as well as showing how ideas of autonomy are still present in the modern legal landscape.

What is Liberty


Liberty for Mills is the one of the ultimate benefits of personhood. By virtue of autonomy and liberty, humans are free to pursue all of their desires and live according to their own whims (so long as no harm comes to others). Mills would not judge those who do things worthy of social reproach, or things that people of common sense have enough clarity of mind to not do, because as independent, rational actors, they should be free to essentially do as they please. Accordingly, Granovsky's entrance into the CPP scheme is simply his choice to partake in a service that is neither mandatory nor immoral. Furthermore, Granovsky as a rational actor is at all times free to simply not pay into the CPP scheme. It may seem nonsensical to the outside observer that he would simply choose to stop paying, but it is not for us to judge. While on its face this may seem unobjectionable, the question must be asked: Is Granovsky a rational actor? Is he free from undue influence? Does he have a choice? This will be elaborated on further.

Tyranny of the Majority
The Tyranny of the Majority is large focus of John Stewart Mill's work. Not only does he focus on the tyranny that the government can use to unduly influence the populace, he also speaks about an even more insidious version of the tyranny of the majority, that which belongs to the populace. The "tyranny of prevailing thought and opinion" can be even more dangerous than overt government action as there is very often nothing to fight or rally against. Granovsky is actually affected by both of these forces as is seen in the differing pieces of legislation that are affecting him.

The CPP
It could be argued that the political actors that have initiated the CPP are unfairly throwing their weight around and making provisions that are unfair to Granovsky. Thomas Aquinas' Natural Law would point out that the sovereign who created the law is all but infallible, so this cannot be the case. A Utilitarian like Jeremy Bentham or a law as efficiency theorist might submit that regardless of whether the "sovereign" is being tyrannical, as long as the most efficient public good is being achieved, it simply does not matter how Granovsky might feel about the result. Ultimately, it is not unreasonable to say that as the vast majority of our parliament members are voted in by the people and are instructed to act as the people bid, there is an implication that the CPP is a law that is directly infringing on Granovsky's rights. The CPP has been institutionalized and created by people who do not care about his problem, and as a result have legitimized a kind of discrimination against people in Granovsky's situation.

Section 15(1) of the Charter of Human Rights and Freedoms
Ironically, the Charter acts tyrannically in both a formal and informal manner. The Charter itself is a product of legislation that is intended to bind the legislature and make sure that people's rights are not infringed. Section 15(1) explicitly points out enumerated grounds that are very striking and says "these are reasons you cannot discriminate against people". While this category is not limited and analogous grounds have been made out such as marital status or citizenship, it is clear that the kind of discrimination that we seek to avoid is against things that are all but immutable. It can therefore be implied that some reasons for discrimination are not as serious. Granovsky's injury was serious enough that he could not work as much as he wanted to, yet at one point in time was classified as a "back ache". Not only does Granovsky not qualify under S.15(1) of the charter because his rights are not being infringed, he also doesn't qualify because the people that put the legislators into power don't want it to apply either. If the populace was truly more concerned with citizens with transitory injuries, they might have lobbied their lawmakers to accommodate these people. The law makers themselves might feel sympathy and do it themselves. Underpinning all of this though is society's lack of caring for people in Granovsky's case. All of the rational actors have simply chosen to exclude people such as him, both explicitly in his omission from the law, as well as implicitly in their reticence to rally around him and further his cause. This "unity of interest" as Mills describes it seems to come through strongly in this case

Limits of Liberty - The Harm Principle
Inevitably, there must be some limits on the liberties that we all enjoy. This principle is articulated by mills as the "Harm Principle". Mills states that the limit on our rights is the protection of the rights of others. We hold full dominion over our thoughts, our minds, our beliefs and our bodies. In exchange for the security that society provides us and the conduit in which it allows us to do this, we owe an obligation to allow others that same privilege and further sponsor it for future generations. According to Dworkin in his distillation of the positivist theory, there is a need for outside influences that work their way into the law and revitalize it and give it direction. We can see here that this constant desire to protect ourselves and others will always be a guiding force that essentially becomes a principle that governs our law. In a similar fashion, this mimics Lon Fuller's discussion of the inner morality of law. The CPP must exist as a result of good people wanting to create a program that not only serves those who need it, but also serves to protect their autonomy interest by giving them a program that can give them the monetary backing to preserve it.

As it pertains to Granovsky, the only reason why one might think he would be denied his contribution is that he is doing harm to others if he is allowed to benefit. This thought is actually echoed in past natural law discussions of the common good. It should be no surprise then that Granovsky would be denied his benefits, as he is not only affecting the common good (people who need funding more than him, thus jeopardizing their liberty) but he is also violating Austin's command theory as well. By not following the law which is designed to preserve autonomy and liberty, he is punished by being denied compensation. All of this begs the question as to how much harm Granovsky can really do. Would him gaining benefits really destroy the CPP? What about his autonomy interests? Clearly they are being impacted by the fact that he can't find steady work. The harm principle assumes that we hold full dominion over our body and mind, but when you can't make enough money to live comfortably, it might be argued that we don't have dominion after all.

Exceptions of Liberty
Lastly, Mills points out that there is an exception to all of the prior rules. All of the past rights only apply to people in possession of "mature faculties". In this case, "mature faculties" corresponds to people who are capable of being guided as a normal, prudent person would by their own convictions. While someone may act in a foolish or perverse manner, as long as they do so in an autonomous and non-harmful or immoral way, they would still be holders of "mature faculties". As a product of his time, Mills would no doubt see people who are capable of holding "mature faculties" as belonging to a rather small group. They would be male, white, of English or western European descent, educated, not necessarily wealthy but preferably so, and last of all, without encumbrance on their physical or mental capacities. One of the issues that Granovsky deals with constantly is the nagging suspicion that he is actually a holder of "mature faculties". Classifying his injury as a mere back-ache evinces this. Should he have a more chronic or debilitating infliction, he would not hold "mature faculties" and thus would be in need of more assistance as people without liberty and autonomy surely need. It seems that the whole underlying notion of the CPP is that people who have no autonomy or liberty are those are compensated, and those who have at least some form of autonomy cannot be as heavily compensated. This is further shown through the "drop-out" provision which allows people to not pay for months that they otherwise would have had to. It must be the case that they aren't paying because they do not have the autonomy to do so. If Granovsky's injury was seen as more serious, perhaps the tyranny of the majority would allow him to be classified as one of the people without autonomy. Since it is not, he is apparently left out in the cold.

Interference with liberty
Lastly, Mills re-characterizes his distrust for the tyranny of the majority in a reference to interference on liberty. His contention is that whenever laws are made, they are often done so in a manner that is both poor as well as serves to infringe on our liberties. As an aside, this kind of thinking is the foundation for the American parliamentary system. It is specifically designed to be hard to pass laws, due to the inherent distrust for the capabilities and capacities of the government. But does that apply in this case?

Each individual is always assumed to be the best person to know what they need for their own betterment. Each person is assumed to be a rational actor, not only capable of knowing their own needs, but acting to further them. This might seem common sense to someone belonging to the privileged group that Mills hails from, but to others it seems manifestly absurd. Many things are done without conscious thought. In contrast to Aquinas' view that the sovereign can do no wrong, we know for a fact that the sovereign can and has done wrong. It should come as no surprise then that rules might be in place which do not allow for a person to exercise their liberty and autonomy; rules that might not have been thoroughly reasoned through. Quite often we impose rules or take actions that we know will better our own autonomy, but quite often we cannot fully appreciate the harm this may cause to others. Although his claim was denied in the end, and most likely would be denied even within a liberal paradigm, it is easy how an outside characterization from someone not in Granovsky's position makes him fit or unfit for participation in the CPP. Parliament cannot foresee all of the harm that will come as a result of their actions. Granovsky bringing a claim against the charter claiming that it infringes his dignity does not seem so farfetched when one considers how much the money could help him to restore his autonomy, something Mills so heavily values.

Criticism of Mills
It must be said that the idea of "true liberty," or the ability to simply act rationally at all times is a farce of the highest order. Not only are human beings controlled by biological urges both normal (such as the desire for food) and superimposed (such as the need for drugs) but they are also controlled by a web of public opinion and public policy so intertwined that it cannot be reasonably severed from their idea of what constitutes autonomy. Mills points out that people who make bad decisions should be left to struggle on their own; society had its chance to mold them properly and failed. This is completely divorced from the world we live in. According to Mills, someone not acting rationally after the death of a loved one, or a father committing crime to feed his family after losing a well paying job during the last recession would still be a flawed individual who society improperly molded. This is not only insulting to those people, but also to our common sense. While it may be theoretically possible to starve oneself to death, or simply get up in a crowded room and shout hate speech, it must be acknowledged that humans as social creatures exist in a world where they no longer have full autonomy. In our current age, there are simply too many ties that bind. Even were he healthy, Granovsky is not an autonomous actor. When he is injured, he loses further autonomy and liberty. Unfortunately, the CPP and Section 15(1) of the charter do little to strip him further of his autonomy and dignity, which is why he loses his case.

What is Paternalism
Although not created by Gerald Dworkin, paternalism from Dworkin's eyes is a direct response to some of the flaws that Dworkin sees in John Stewart Mill's theories on liberty and autonomy. Rather than adopting the more socio/psychological approach as was previously done, Dworkin focuses on abstract as well as overarching societal factors that bring questions not adequately touched on by Mills into play. As one might expect from "Paternalism" which has its origins in "parenting", paternalism posits that there are things that certain individuals are not adequately equipped to handle, and someone or something with more power might be better off guiding you than you yourself would be able to. In the abstract this does not seem to apply directly to Granovsky, however it must be said that overarching governmental programs and regulations do often serve a paternalistic role in our society. It may even be said that the very nature of the CPP is paternalistic. There is nothing stopping Granovsky from depositing the money that he is giving to the CPP in his own bank account and helping to save it for a rainy day. Unfortunately, human beings are not always rational actors and we do feel the need to give some of our agency away to people who might better handle it. Although Mill might disagree, giving away autonomy is something that should be seen as the greatest form of autonomous expression. As we can see here, Mill would classify Granovsky's participation as a rational choice made by a rational actor, whereas Dworkin would see someone who acknowledges his own frailty and absconds with some element of that autonomy.

When is Paternalism Justified
Mill's focus on liberty was very focused on the individual. The individual as rational actor affects his world and as long as his rational acts don't infringe on the liberty of others, society as a whole will prosper. When we delve deeper into this theory though, we can see how it perpetuates a certain economic model that may or may not be efficient in the same way as law as efficiency experts dictate.

Primarily, one must consider that as a course of doing business, one might invariably infringe on the liberty of others. Our antagonistic business model in fact condones this, adopting a survival of the fittest model that gives prestige to the victor who can run his competition out of town. This libertarian model though is not the world in which we live. We have rules and regulations that prevent us from cheating the system or conspiring or using fraud to run our competitors out of business. We do not have full autonomy to affect the rights of others, there are some inescapable paternalistic influences. Paternalism recognizes that in certain instances, it will be valid to adopt paternalistic practices if we can deter harm to third parties that comes as a by-product of our behaviour.

Paternalistic practices come into play to prevent harm to ourselves as well. Paternalism is most justified when long term or irreversible damage might be done to the persons autonomy. Where Mill might let someone suffer as a result of exercising their autonomy, Dworkin would not be so fast to allow this. Both Mill and Dworkin are supporters of autonomy, but both differ on the best ways to fully achieve that autonomy.

Regardless of how Granovsky approaches entering into the CPP, both Dworkin and Mill would most likely characterize his participation as a valid form of autonomous action. Section 15(1) of the Charter however is more problematic. Mill as previously seen is convinced that where the law intervenes it does so imprudently and inefficiently. By using Dworkin's analysis, we can see the value that section 15(1) provides. By explicitly banning discrimination against certain groups, it helps to preserve the autonomy of possibly hundreds of thousands of people. For Granovsky, his claim that the provisions and structure of the CPP violate his dignity are inevitably tied into his view on paternalism. Paternalism is supposed to make sure that peoples rights are not violated and that harm isn't done to others, however for him, the entity that he trusted to take care of him has now breached that trust and refused to do so. We know from John Austin that once a law meets the formal requirements of what constitutes a law, no other considerations are required. Here though it is not difficult to see how a kind of moral outrage can come about as an abuse of this trust. The CPP is stunting his personal well-being as per Thomas Aquinas, and as such it should not be followed. The drop out provisions are thereby unfair and should be summarily revoked so that he can get what he deserves. Unfortunately it doesn't work out for him, but this is the inherent danger within paternalism.

Economic Aspects of Paternalism
There are multiple ways to enact paternalistic policies or legislation; Complete prohibitions can be placed that prevent certain activities. Restrictions can be placed to limit certain kinds of behaviour but not completely outlaw it. Ultimately, not unlike judge made law, the restrictions and bans are made with efficiency at heart. It does not make sense for law makers to enact laws that will not work and further everyone's autonomy interests, as this could be seen as inherently immoral behaviour as per Thomas Aquinas.

Dworkin contends that there must always be a proportional level between the paternalism taking place and the goals attempting to be achieved. The least restrictive approach is often the preferred one, and the onus of proof is on the authority putting the laws into place to justify its decision. If we adopt a law and economics lens for a moment, we can see the nexus between that theory and Dworkin's desire for some paternalistic influence. The reason we have some limited paternalism is because we know that there needs to be some efficient mechanism to regulate the quiet often reckless or irrational choices that humans make, yet at the same time liberty and autonomy need to be preserved because it is an inalienable part of being a human being. We could easily prevent people from driving dangerously by putting speed limiting devices on cars, but is this the best way to prevent dangerous driving?

Granovsky would seemingly have issues with the drop out provisions in this case as they are most likely not the best way to achieve the goal of the CPP. Under this analysis, he would contend that the paternalism is too far over-reaching, and the provisions do not adequately meet his needs. These provisions have affected his dignity and thus are neither efficient, nor helping to support his autonomy. This kind of argument speaks to a past element of Mill's contention regarding state made laws. If state made laws are considered inefficient, then any law will invariably influence our rights too much and are rarely ever justified as a result. This creates a similar feedback loop aimed towards the "Rule Governed Practice" but the societal morals and values are adversely affecting laws by heightening the value of autonomy beyond what may be reasonable within the world we occupy.

Granovsky is denied his claim by Mills as he simply chose above everything to not follow the rules enshrined in the CPP. Whether Dworkin would deny his claim or not is unsure, but looking at the judgement as showing deference for the rules in place and showing appreciation for the drop out provisions in trying to make sure everyone could reasonably be covered under the CPP, it would be hard to imagine that he would support Granovsky. Paternalism by its very nature shows deference to the legislature or sovereign. Ultimately, the courts are less inclined to show deference when the state is the sole antagonist against a person's rights but in a fit of irony, they are most likely more inclined to do so in this case as finding for Granovsky would have huge budgetary implications that may in fact not be efficient. Lastly, if the principles of non discrimination were changed to include people with transitory and less serious injuries such as Granovsky's, it might adversely affect the feedback loop within the principles of the rule governed practice so greatly that all new laws would show far too much consideration for certain types of injuries than is economically efficient.

Special Topic: Suicide
In any discussion of liberty and autonomy, suicide is bound to come up. While both Dworkin and Mill deal with it separately, they both seem to lack what the other person brings to the table.

Characterizing suicide as "the right to die" is a seemingly extremely liberal approach. The very language itself indicates agency and choice, something Mill is very fond of. However, Mill submits that we cannot abrogate our own freedom in this way. A rational actor will not give away his autonomy, only preserve it. A rational actor does not have the right to sell themselves into slavery under his theory. However, in order to bring it into the real world, we know that there needs to be some sort of external element that prevents us from killing ourselves. It could be our biological instinct that persevere that saves the day, but more often than not, it is paternalistic influences that dissuade us the most. Admonishments from a priest serve this purpose well, but advice from a doctor serves the same purpose. If one is contemplating suicide, they are most likely emotionally compromised and are in need of some assistance. Mill doesn't want us to commit suicide, but if we do he would blame it on us as not being properly molded by society. His theory is clearly not grounded in the reality in which we operate.

Characterizing suicide as "doctor assisted suicide" on its face seems paternal in nature. We cannot do it ourselves, so we seek the help of others to do it for us. This would seem to indicate that other people may know best for us, and as a doctor has to follow the Hippocratic oath, we should be restricted from being allowed to commit suicide. How then can re reconcile this restriction against Dworkin's own desire to enshrine our autonomy as something sacred? Even though it seems next to impossible that someone would kill themselves simply because they could, human experience being infinitely variable it would at least be plausible to think that there could be many valid reasons for suicide. If Dworkin is so concerned with preventing irreversible harm, why then do our laws allow Jehovah's Witnesses to decline blood transfusions that would save their lives, or allow children to die due to inadequate medical attention? Ironically, it is the ultimate form of autonomy to deny yourself autonomy. A single man in his 60's with no family or friends or job who kills himself to prevent early onset Alzheimer's disease is most likely not emotionally compromised, but is choosing to live a life that he wants to live, not subject himself to a disease that will strip his autonomy away from him.

While Granovsky is not suicidal, this exercise is meant to show that neither paternalism nor liberty theory come even close to accounting for the experience that Granovsky is dealing with. Neither theory stands without the other, yet neither theory can even stand on its own with the help of the other. This is simply meant to show that humans live in a society that actively restricts our choice far beyond what is dealt with in these theories.