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 a right, and any interference by the state on that liberty must be justified.

There are several valid justifications for 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 is 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.

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 despotic and must be carefully controlled.

Mill notes there are two main ways that liberty can be suitably limited per the justification noted above:

• 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 and embodied in the Constitution.

Harm Principal Mill supports a much stricter version of the Harm Principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but it is a necessary condition of legitimate interference with that liberty.

Tyranny of the Majority

Limits on Liberty

Exceptions to the Rule of Liberty

Gerald Dworkin and Paternalism

Paternalism challenges liberalism and argues that there may be situations in which interference with individual liberty is justified. This theory is headed by the thoughts of Gerald Dworkin.

Contrasting Liberty and Paternalism with Other Legal Theories

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 focused 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 positivism and natural law and supports integration of morality within a legal framework.