Course:Law3020/2014WT1/Group C/Liberty & Paternalism

Liberty and Paternalism

Liberty and Paternalism depart from previous legal theories and is concerned with the proper limits of law. Both theories have a presumption in favour of liberty for the individual as an inherent right, and any interference by the state on that liberty must be justified. (Dimock, page 302)

There are several valid justifications for a law’s restriction of liberty:

• The Harm Principle

The harm principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society.

• Paternalism

Paternalism allows for the restriction of individual liberty by law if it protects others from harm through the exercise of that individual’s liberty in harming themselves.

• Legal Moralism

Legal Moralism allows the restriction of individual liberty by law where the individual’s actions undermine societal morals and values.

• The Offence Principle

The offence principle allows for the restriction of individual liberty by law if it ensures that the sensibilities of others are not unduly offended. (Dimock, page 303)

John Stuart Mill and Liberty

Mill begins with the presumption of liberty for all individuals. He then is concerned with the proper limits of authority in law on that liberty and feels that liberty itself is inherently difficult and must be carefully controlled. (Dimock, page 304)

Mill notes the concept of liberty itself sets limits on authorities through:

• Political Liberties or Rights

Certain immunities of which it is regarded as a breach of duty for an authority to infringe. This is seen today in Canada through our enshrined rights in the Canadian Charter of Rights and Freedoms and provincial rights codes, including the British Columbia Human Rights Code.

• Constitutional Checks

A system that requires consent from a body of some sort that represents the interests of the community in reviewing the power of authorities. This is seen today in Canada through our Parliamentary system and democratic self-government, whose powers are derived from and embodied in the Constitution. (Dimock, page 304)

Harm Principal

Mill feels the fundamental party to protect in society is that of the individual. Society provides that protection through law. As society provides protection, Mill asserts that we, as individuals, have a necessary obligation in return to contribute to the maintenance of that society, defend it as necessary, and ensure that we do not contribute to the harm of others within it. As such, Mill believes in a strict application of the Harm Principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but prevention of harm is a necessary condition of legitimate interference with liberty. (Dimock, page 308-319)

Tyranny of the Majority

Mill notes the popularity of self-government and democratic rule, in which the public itself becomes a part of the authority that controls the limits on liberty. The inherent problem with self-government is the danger of creating a Tyranny of the Majority. The Tyranny of the Majority is when society itself becomes the tyrant and collectively imposes its power over the individuals who compose it. Society can and will often pass its own mandates, and if it passes mandates that are incorrect or not necessary, through social tyranny the power of those mandates can become oppressive, enforce conformity, and leave fewer avenues for individuals to escape from improper limits on their liberty. The Tyranny of the Majority includes social tyranny through prevailing opinions and feelings. Mill feels that there needs to be a limit on the inference of collective opinion with individual independence and finding proper limits is necessary to protect liberty and prevent political despotism. (Dimock, page 305-306)

Exceptions to the Rule of Liberty

Mill notes that the right to liberty does not apply to children under the age limits set by law for adulthood or to ‘nonage’ societies that are ‘backwards’ in their social development. Mill notes that these parties must be protected by others with more mature faculties against harm from their own actions and the actions of others in society. (Dimock, page 306)

Citation: Dimock per References

Gerald Dworkin and Paternalism

Paternalism challenges Liberty and expands on the idea of the harm principle as a justification to limiting individual liberty. Paternalism argues that interference with individual liberty is not only justified in prevents harm to others, but is also justified if it prevents harm to the individual on themselves. This is also true in cases where prevention of individual harm incidentally leads to prevention of harm to third parties. Paternalistic interference preserves autonomy, which Dworkin asserts is analogous to liberty.

Dworkin introduces several other justifications for limits on liberty:

• Limiting liberty is allowed where action of the individual produces irreversible and destructive changes of personal liberty/autonomy. In example, through irrational choices or addiction.
• Limiting liberty is allowed where individual decisions are made under extreme psychological pressure and the risks associated are not freely chosen or understood. In example, suicide or confessions.

Contrasting Liberty and Paternalism with Other Theoretical Treatments

Many of the concepts considered as valid justifications for the limits of law fit within the moral framework of earlier theories set forth by Legal Positivists and Natural Law theorists. For example, the Harm Principle itself is partly founded on the interests of every person not to be seriously harmed by others. This interest is certainly a requirement of the common good found in both Legal Positivism and Natural Law. Further, this type of common good supports an integration of morality within the legal framework. However, it should be noted that Liberty and Paternalism theorists will stress the fact that it is liberty itself which allows for expression of moral values, therefore, justification of law comes from restraint on limiting liberty through creation of social rights which embody moral values preventing harm in society, not through justification that the moral values themselves create or justify law. Essentially, it is the presumption of liberty that allows for moral values in the first place.

Application of Liberty and Paternalism to Moore v. British Columbia (Education)

Liberty and a System of Rights

The Supreme Court of Canada in Moore v. British Columbia (Education) uphold the presumption of individual liberty; specifically, the liberty of students to develop their individual potential and acquire the knowledge and skills needed to contribute to a healthy democratic society through education. This liberty is protected in the acknowledgement by the provincial government that there is an inherent right to access to education under section 8 of the British Columbia Human Rights Code. Further, the Code sets out the limits of which the government must adhere in order to prevent discrimination against individuals on the basis of this right and the liberty it protects. These facts strongly follow Mill’s concept of individual liberty and the idea that the creation of a system of political rights and liberties is one method to ensure authoritative powers do not infringe indvidual liberty.

Protection of Children Under Liberty

It is important to note that the Court stresses the importance of how all children should be afforded equal opportunities to develop their full potential through education. In fact, the Court goes as far as to stress the importance of protection of children against the harm of receiving poor education or limited access to the education available. In Jeffrey’s case, at the Tribunal level, experts clearly agreed that Jeffrey suffered as a result of having poor access to facilities to address his learning disability and noted sufficient access to those facilities in the public school system would have benefited him in the long run. The Court here submits that the public school system has a duty to provide sufficient access to education for all students, including those with learning disabilities. These ideas fit Mill's presumption that the doctrine of Liberty is only applicable to those of mature faculties and that those who do not have these faculties, children under the legal age of adulthood or ‘nonage’ societies, must be protected by those who do against harm from their own actions (in this case, Jeffrey's) and actions of others (in this case, the school district and Province).

Application of the Harm Principle as Justification for Limits on Liberty

The idea of protection of children against harm easily brings in the Liberty theory of the Harm Principle as set out by Mill. The Harm Principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society. In Jeffrey’s case, the ‘others’ in society are those children with special educational needs, and the ‘harm’ that occurs is their inability to access education to allow full liberty to develop their skills and knowledge as a contributing individual in society. As the Tribunal and Supreme Court of Canada noted, the actions of the school district did not meet this justification. Their actions were stressed as being one of economic need in allowing the cutbacks to the programs for special needs students that Jeffrey required. Further, the actions by the school district indiscriminately allowed some programs, such as the Outdoor School, while cutting others, such as the Diagnostic Centre. At no point did the actions of the school district seek to prevent harm to special needs students in the education system, of which, had the school district sought to do so it may have allowed the limits they imposed under the Harm Principle. This is extremely prevalent in the decision by the school district to not even consider alternative options for special needs students in their public schools before cutting the programs completely.

Application of Paternalism as Justification for Limits on Liberty

Paternalism notes that not only are limits against liberty justified in situations of prevention of harm to others, as stressed by Mill, but Dworkin allows limits against liberty as justified in situations of prevention of harm to the individuals through their own actions. In this case, the ‘harm’ would be to Jeffrey as an individual in his own actions when failing to have a sufficient education that would aid in his development as an intelligent adult (of which all students are entitled to under the British Columbia Human Rights Code). Again, however, the school districts actions were primarily economically-motivated and did not seek to prevent harm in any way, and therefore, the findings of the Tribunal and Supreme Court of Canada in discrimination against special needs students are well-founded as Paternalism also does justify their limits on liberty.

Conclusion

Mill and Dworkin would most likely agree with the Supreme Court of Canada's decision on Moore v. British Columbia (Education) as the Court's decision strongly valued the presumption of inherent individual liberty and the rights that arise thereof. Further, the Court's decision that the limits the school district imposed on the public school system and on Jeffrey's access to education as infringing individual liberty was well-founded as the limits did not fit under either Mill's or Dworkin's possible justifications for a limit on liberty (in either the Harm Principle per Mill or Paternalism per Dworkin).

Treatments of Selected Theoretical Perspectives

Legal Perspectives		Philosophers
	Natural Law	Thomas Aquinas
	Legal Positivism	John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
	Separation Theory	HLA Hart
	System of Rights	Ronald Dworkin
	Liberty and Paternalism	John Stuart Mill and Gerald Dworkin
	Law as Efficiency	Susan Dimock
	Feminist Jurisprudence	Patricia Smith and Catharine Mackinnon