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

Liberty and Paternalism

Liberty

In contrast to earlier theorists, liberty and paternalism does not concern itself with whether or not the laws created are valid or not. Liberty and paternalism is concerned with the effect of the law on individual liberty. Personal liberty is presumed to be free from legal restrictions. However, liberty must be balanced against competing interests this may lead to liberty being restricted. Therefore, questions arise as to when and why, should the law interfere with liberty and when is this interference with liberty justified.

John Stuart Mill

There are four possible justifications for the law’s restriction on liberty, the harm principle, paternalism, legal moralism and the offence principle. The harm principle states that liberty should be restricted to prevent serious harm to others. John Stuart Mill argues this to be the only legitimate justification for law restricting liberty. Paternalism justifies the law’s restriction on liberty in order to protect individuals’ autonomy from harm due to the exercise of their own liberty upon themselves. Mill rejects this justification except in the case of children and those without mature faculties. Legal moralism states liberty should only be restricted to ensure individuals’ actions do not undermine society’s morals or values. The offence principle justifies restricting liberty to ensure individuals do not offend other members of society.

According to Mill, society needs authority to prevent violent anarchy. However, authority itself must be limited and controlled. Mills contends authority can be limited through liberty. Certain liberties or rights such as political ones are recognized as being immune from government authority. Thus authority is limited in the sense that it cannot invade this liberty. Also, liberty provides constitutional checks on government authority as well as gives authority, temporarily, to the government through election. Mills is careful to note that the problem of tyranny may arise. The government is elected by the majority therefore has majority support and has the ability because of this support to limit minority liberties.

Paternalism

Gerald Dworkin

Paternalism expands on liberty and justifies its restriction to prevent harm to one’s own autonomy. Paternalism attempts to protect the individual from harm they make cause to themselves through the exercise of their liberty. Paternalism is not concerned with harm to others but harm to oneself. Mill rejects this and argues instead each individual is the best judge for him or herself.

Autonomy is viewed as the core of independence at the centre of being a human being. According to Mill, paternalism denies this independence in a way that essential denies them their essential humanity. However, Gerald Dworkin contends individuals are not always the best judges for themselves; individuals make irrational choices such as when under extreme psychological pressure. In these situations the exercise of liberty will have the impact of long-term irreversible damage to their autonomy. Therefore in these situations it is necessary to restrict their liberty in order to prevent harm to their autonomy.

Application to KLB v BC

Liberty and Paternalism

The negligence law restricts individual choice by requiring a certain level of conduct from the Minister, social workers, and foster parents. Therefore, the negligence laws restrict liberty and must be justified. Mills would find this restriction on liberty to be justified through the harm principle. The negligence law requires these individuals because of the duty of care that arises, to conduct themselves in reasonable ways to avoid harm to the children under their care. This restriction on liberty can also be justified by legal moralism. Legal moralism would find society values protecting children from abuse and harm and in order to achieve this value restrictions must be placed on the liberty of those charged with caring for these children. Therefore, the restriction on liberty is justified in order to ensure these individuals’ actions do not undermine society’s value in protecting children.

The Protection of Children Act also restricts the liberty of the Minister and the social workers. The act actually restricts liberty more than the negligence law. The act requires the Minister and social workers to follow the specific requirements in the act. Whereas, the negligence law provides a general principle, that a duty of care is owed and does not require specific actions from the Minister and social workers, It allows the Minister and social workers to determine what is reasonable themselves. Although, the negligence law restricts liberty it does so in a way that allows the individual to still exercise some liberty in choosing reasonable conduct. Mill would find this restriction on liberty to be justified due to its purpose of preventing harm to the children, thus it is valid under the harm principle. Legal moralism would also find this restriction to be justified since society values protecting children from harm that may be caused by those responsible for them.

Paternalism, on the other hand, would not find the restriction on liberty created by the negligence law and Protection of Children Act to be justified. Paternalism accepts restrictions on liberty only when the restriction prevents harm to one’s autonomy. The Protection of Children Act and negligence law does not prevent harm to one's autonomy in their restrictions on liberty. instead these laws aim to prevent harm to others by restricting their exercise of liberty. Also, these laws cannot be characterized as weaker paternalism, the laws are not aimed at indirectly preventing harm to one’s autonomy.

Mill would also acknowledge that problems with tyranny of the majority do not arise here. The negligence law and Protection of Children Act are not laws created by the majority for the purpose of suppressing the minority. Rather, the entire community would agree with the enactment of these laws and would not find these laws to be suppressing the minority to pursue the agenda of the majority. Furthermore, the application of the negligence law applies to everyone who is responsible for a child. Therefore, it cannot be said the law applies only to the minority.

The Limitations Act restricts the liberty of the children involved in this case. The act specifies that an action must be brought within a certain period of time. Mill would justify this restriction on liberty by reference to the harm principle. Specifically, the restriction on claimants' liberty protects accused individuals from harm of litigation for wrongs conducted many years prior. The restriction protects them from stigma and protects their liberty.

Paternalism would also find this restriction on liberty to be justified however, for different reasons than Mill. The Limitation Act by limiting when the children can bring an action prevents harm to their autonomy. Dworkin would find the children are not the best judges of themselves. The children have been subjected to abuse, which would affect their ability to make rational decisions. The irrational choice to bring litigation many years after the event would cause the children to suffer through reliving the abuse and this could have the effect of causing serious irreversible and destructive damage to their autonomy. Although, the children in this case saw this restriction as frustrating their choices. Dworkin would balance the impact on their autonomy against the potential for damaging their autonomy and find the harm to their autonomy outweighs the restriction on their autonomy. Dworkin would emphasis the possibility of this causing destructive and irreversible harm to their autonomy.