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

Liberalism

Liberalism is a departure from other philosophies so far considered as it is not concerned with what law is, but asks when and why the law should interfere with private choices. That is, when are restrictions on individual liberty justified? Because law is used to regulate human behaviour, it often restricts the liberties of individuals to do as they wish (Dimock 302). A liberal society is founded on the presumption that individuals have the right to liberty and any interference with that right requires justification (Dimock 303). However, it appears that restrictions on liberty are required for appropriate societal function, hence, the need for laws.

Liberalism identifies four justifications for restricting the liberty of individuals by law:

1. The harm principle states that a society is justified in restricting the liberty of any of its members when it is necessary to prevent serious harm to others. “It is surely a requirement of the common good as well as the principle of utility that all refrain from inflicting serious harm on others in society” (Dimock 303). It is easy to comprehend how this principle is advantageous to society by preventing harm to others. JS Mill would argue that this is the only principle that supports the justification of interference with individual liberty, but other philosophers recognize three more justifications.

2. Paternalism suggests that 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 303). This principle allows the restriction of individual liberty when a person’s actions are detrimental to him or herself, that is, society will determine when a person is no longer allowed liberty based on their actions.

3. Legal Moralism allows society to interfere with individual liberty to prevent its members from acting in ways that conflict with or undermine the moral values of the social or community. Arguments in favour of restricting abortion and the regulation of sexual morality through prohibition of homosexuality, pornography and prostitution are often made on legal moralistic grounds (Dimock 303).

4. The Offence Principle allows society’s interference with the liberty of individuals to prevent them from causing offence to others. This principle does not prevent harmful behaviours to others or to the individual, but considers protecting unwilling audiences in public spaces from being confronted with unwanted and offensive behaviours.

JS Mill

JS Mill is a philosopher who defends individual liberty. The only justification Mill sees as legitimate for interfering with an individual’s liberty is that which harms others. To Mill, the individual is sovereign over himself and over his own body and mind. “The individual cannot rightfully be compelled to do or forebear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right” (Dimock 306). Ultimately, each individual must be presumed to be the best judge for him or herself, so long as they are not causing harm to others. Even if it appears to society that someone is making poor decisions, that individual is the best person to make those decisions.

Qualifying an individual’s right to be free from interference, Mill identifies children or individuals not in the maturity of their faculties as exempt from this rule. That is to say, these individuals are not capable of making decisions for themselves and so society must interfere with their liberty to be protected against their own actions as well as against external injury.

Liberalism; Application to Cuthbertson v Rasouli

Cuthbertson v Rasouli, 2013 SCC 53 (CanLII) 310 OAC 19.