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

Liberty

John Stuart Mill proposes that legal philosophers stop asking what the law is and start asking when the law ought to be used to enforce the moral code of society. He believes that since the law is used to regulate human behaviour, people should be more concerned with the limits of law and poses the following: when are restrictions on the liberty of individuals justified?

Mill argues that the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent serious harm to other people. He rejects the principle of paternalism and the idea that it is okay for the law to restrict or prevent a person from harming themselves such as by way of suicide or an addiction to bad habits. An individual, Mill states, knows what is best for him or her self and should be free to do what they want even if others disagree. Additionally, a person should not be punished for thoughts or beliefs that he or she has unless they are injurious to others.

Application to A.C. v Manitoba

Although liberty and freedom are necessary to strengthen the morality of society, Mill argues that these values are not meant to apply to young persons below the legal age. Children are incapable of self-government. That being said, Mill would still agree with the underlying principles of this case. This is because A.C. was asked and able to demonstrate that she is not a child but is in fact a “mature minor” who is capable of rational choice.

Woven into ss. 25(8) and 25(9) of the Manitoba Child and Family Services Act is an age requirement: a child is only able to make a decision with respect to his or her own medical treatment if he or she is at least 16 years old. This is, according to lawmakers, the earliest age that a child is considered to be a “mature” human who is capable of self-government. At 14, A.C. does not meet this basic prerequisite. However – since she was able to demonstrate that she has the intellectual capacity necessary to understand the information relevant to making her medical decision, that she appreciates the consequences of the decision and that her decision was a true reflection of her core religious beliefs – the court found A.C. autonomous despite the legislation. Mill would therefore support the majority and the dissent of this case. Even though A.C. is legally still a child, she possesses mature faculties and liberty applies to her.

To outline what constitutes maturity and impose this definition on young people follows Mill’s rationale. This legislation at least partially reiterates the main point of Mill's thesis: power can only be exercised over an individual, against his will, when it prevents serious harm to other people. While ss. 25(8) and 25(9) are clearly more paternalistic, they do encompass some elements that Mill would agree with: two of the main purposes of the Act for example, is to protect children who are incapable of rationality from obtaining autonomy as well as from causing emotional harm and damage to the other people in his or her life. This includes a child’s doctor, parents and friends.

Paternalism

Gerald Dworkin (not to be confused with previously mentioned legal theorist, Ronald Dworkin) disagrees with Mill and contends that interference with a person’s personal liberty for the purpose of self-harm is justified when it is for his or her own good. Further, paternalistic intervention will be permitted if the consequences of an individual’s free choice are “far-reaching, potentially dangerous and irreversible.” Dworkin argues that paternalism is comparable to a social insurance policy as it is a safeguard that serves to protect each consenting person in society from damaging his or her own personal autonomy.