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

Introduction

Instead of focusing on the essence or "law-ness" of law itself, John Stewart Mills and Ronald Dworkin's theories of Liberty and Paternalism focus more on the people who are affected by the laws. Furthermore, they focus on how people should engage with the law and how the law will affect them and their capacity as rational actors within the legal system. Although both men recognize the importance of autonomy as being fundamental to the human condition, both of them recognize that there may be some need for limits. As we will discover, both theories are fraught with possible issues. On the whole though, they provide valuable insight into both Granovsky's Case, as well as showing how ideas of autonomy are still present in the modern legal landscape.

Liberty

What is Liberty

Liberty for Mills is the one of the ultimate benefits of personhood. By virtue of autonomy and liberty, humans are free to pursue all of their desires and live according to their own whims. Mills would not judge those who do things worthy of social reproach, or things that people of common sense have enough clarity of mind to not do, because as independant, rational actors, they should be free to essentially do as they please. Accordingly, Granovsky's entrance into the CPP scheme is simply his choice to partake in a service that is neither mandatory nor immoral. Furthermore, Granovsky as a rational actor is at all times free to simply not pay into the CPP scheme. It may seem nonsensical to the outside observer that he would simply choose to stop paying, but it is not for us to judge. While on it's face this may seem unobjectionable, the question must be asked: Is Granovsky a rational actor? Is he free from undue influence? Does he have a choice? This will be elaborated on further.

Tyranny of The Majority

The Tyranny of the Majority is large focus of John Stewart Mill's work. Not only does he focus on the tyranny that the government can use to unduly influence the populace, he also speaks about an even more insiduous version of the tyranny of the majority, that which belongs to the populace. The "tyranny of prevailing thought and opinion" can be even more dangerous than overt government action as there is very often nothing to fight or rally against. Granovsky is actually affected by both of these forces as is seen in the differering pieces of legislation that are affecting him.

The CPP

It could be argued that the political actors that have initiated the CPP are unfairly throwing their weight around and making provisions that are unfair to Granovsky. Thomas Aquinas' Natural Law would point out that the sovereign who created the law is all but infalliable, so this cannot be the case. A Utilitarian like Jeremy Bentham or a law as efficiency theorist might submit that regardless of whether the "sovereign" is being tyrannical, as long as the most efficient public good is being achieved, it simply does not matter how Granovsky might feel about the result. Ultimately, it is not unreasonable to say that as the vast majority of our parliament members are voted in by the people and are instructed to act as the people bid, there is an implication that the CPP is a law that is directly infringing on Granovsky's rights. The CPP has been institutionalized and created by people who do not care about his problem, and as a result have legitimized a kind of discrimination against people in Granovsky's situation.

Section 15(1) of The Charter of Human Rights and Freedoms

Ironically, the Charter acts tyrannically in both a formal and informal manner. The Charter itself is a product of legislation that is intended to bind the legislature and make sure that peoples rights are not infringed. Section 15(1) explicitly points out enumerated grounds that are very striking and says "these are reasons you cannot discriminate against people". While this category is not limited and analagous grounds have been made out such as marital status or citizenship, it is clear that the kind of discrimination that we seek to avoid is against things that are all but immutable. It can therefore be implied that some reasons for discrimination are not as serious. Granovsky's injury was serious enough that he could not work as much as he wanted to, yet at one point in time was classified as a "back ache". Not only does Granovsky not qualify under S.15(1) of the charter because his rights are not being infringed, he also doesn't qualify because the people that put the legislators into power don't want it to apply either. If the populace was truly more concerned with citizens with transitory injuries, they might have lobbied their lawmakers to accomodate these people. The law makers themselves might feel sympathy and do it themselves. Underpinning all of this though is society's lack of caring for people in Granovsky's case. All of the rational actors have simply chosen to exclude people such as him, both explicitly in his omission from the law, as well as implicitly in their reticence to rally around him and further his cause. This "unity of interest" as Mills describes it seems to come through strongly in this case

Limits of Liberty - The Harm Principle

Inevitably, there must be some limits on the liberties that we all enjoy. This principle is articulated by mills as the "Harm Principle". Mills states that the limit on our rights is the protection of the rights of others. We hold full dominion over our thoughts, our minds, our beliefs and our bodies. In exchange for the security that society provides us and the conduit in which it allows us to do this, we owe an obligation to allow others that same privilege and further sponsor it for future generations. According to Dworkin in his distillation of the positivist theory, there is a need for outside influences that work their way into the law and revitalize it and give it direction. We can see here that this constant desire to protect ourseleves and others will always be a guiding force that essentially becomes a principle that governs our law. In a similar fashion, this mimics Lon Fuller's discussion of the inner morality of law. The CPP must exist as a result of good people wanting to create a program that not only serves those who need it, but also serves to protect their autonomy interest by giving them a program that can give them the monetary backing to preserve it.

As it pertains to Granovsky, the only reason why one might think he would be denied his contribution is that he is doing harm to others if he is allowed to benefit. This thought is actually echoed in past natural law discussions of the common good. It should be no surprise then that Granovsky would be denied his benefits, as he is not only affecting the common good (people who need funding more than him, thus jeopardizing their liberty) but he is also violating Austin's command theory as well. By not following the law which is designed to preserve autonomy and liberty, he is punished by being denied compensation. All of this begs the question as to how much harm Granovsky can really do. Would him gaining benefits really destroy the CPP? What about his autonomy interests? Clearly they are being impacted by the fact that he can't find steady work. The harm principle assumes that we hold full dominion over our body and mind, but when you can't make enough money to live comfortably, it might be argued that we don't have dominion after all.

Exceptions of Liberty

Lastly, Mills points out that there is an exception to all of the prior rules. All of the past rights only apply to people in possesion of "mature faculties". In this case, "mature faculties" corresponds to people who are capable of being guided as a normal, prudent person would by their own convictions. While someone may act in a foolish or perverse manner, as long as they do so in an autonomous and non-harmful or immoral way, they would still be holders of "mature faculties". As a product of his time, Mills would no doubt see people who are capable of holding "mature faculties" as belonging to a rather small group. They would be male, white, of english or western european descent, educated, not necessarily wealthy but preferably so, and last of all, without encumberance on their physical or mental capacities. One of the issues that Granovsky deals with constantly is the nagging suspicion that he is actually a holder of "mature faculties". Classifying his injury as a mere back-ache evinces this. Should he have a more chronic or debilitating infliction, he would not hold "mature faculties" and thus would be in need of more assistance as people without liberty and autonomy surely need. It seems that the whole underlying notion of the CPP is that people who have no autonomy or liberty are those are compensated, and those who have at least some form of autonomy cannot be as heavily compensated. This is further shown through the "drop-out" provision which allows people to not pay for months that they otherwise would have had to. It must be the case that they aren't paying because they do not have the autonomy to do so. If Granovsky's injury was seen as more serious, perhaps the tyranny of the majority would allow him to be classified as one of the people without autonomy. Since it is not, he is apparently left out in the cold.

Interference with liberty

Lastly, Mills re-characterizes his distrust for the tyranny of the majority in a reference to interference on liberty. His contention is that whenever laws are made, they are often done so in a manner that is both poor as well as serves to infringe on our liberties. As an aside, this kind of thinking is the foundation for the American parliamentary system. It is specifically designed to be hard to pass laws, due to the inherent distrust for the capabilities and capacities of the government. But does that apply in this case?

Each individual is always assumed to be the best person to know what they need for their own betterment. Each person is assumed to be a rational actor, not only capable of knowing their own needs, but acting to further them. This might seem common sense to someone belonging to the privileged group that Mills hails from, but to others it seems manifestly absurd. Many things are done without conscious thought. In contrast to Aquinas' view that the sovereign can do no wrong, we know for a fact that the sovereign can and has done wrong. It should come as no surprise then that rules might be in place which do not allow for a person to exercise their liberty and autonomy; rules that might not have been thoroughly reasoned through. Quite often we impose rules or take actions that we know will better our own autonomy, but quite often we cannot fully appreciate the harm this may cause to others. Although his claim was denied in the end, and most likely would be denied even within a liberal paradigm, it is easy how an outside characterization from someone not in Granovsky's position makes him fit or unfit for participation in the CPP. Parliament cannot foresee all of the harm that will come as a result of their actions. Granovsky bringing a claim against the charter claiming that it infringes his dignity does not seem so farfetched when one considers how much the money could help him to restore his autonomy, something Mills so heavily values.

Criticism of Mills

It must be said that the idea of "true liberty", or the ability to simply act rationally at all times is a farce of the highest order. Not only are human beings controlled by biological urges both normal (such as the desire for food) and superimposed (such as the need for drugs) but they are also controlled by a web of public opinion and public policy so intertwined that it cannot be reasonably severed from their idea of what constitutes autonomy. Mills points out that people who make bad decisions should be left to struggle on their own; society had its chance to mold them properly and failed. This is completely divorced from the world we live in. According to Mills, someone not acting rationally after the death of a loved one, or a father committing crime to feed his family after losing a well paying job during the last recession would still be a flawed individual who society improperly molded. This is not only insulting to those people, but also to our common sense. While it may be theoretically possible to starve oneself to death, or simply get up in a crowded room and shout hate speech, it must be acknowledged that humans as social creatures exist in a world where they no longer have full autonomy. In our current age, there are simply too many ties that bind.

Interference (nominal mature people) simply logistically unworkable

Free development, exchange of ideas = dynamic growth (value in ideas that majority might suppress as “wrong”

Paternalism

Dworkin Identifying circumstances in which interference with individual liberty will be justified, where the purpose of interference is prevention of harm to that person (As opposed to others) although incidentally there may also be a prevention of harm to third parties (where the interference is paternalistic)

Paternalistic interference justified to prevent long term or irreversible damage to that person’s autonomy; limited (in this way) paternalistic interference preserves autonomy.

Idea of autonomy - a core independence lies at the centre of what it means to be human; denying that independence through coercion “for ones own good” denies that individuals essential humanity A person does not have the liberty to sell themselves into slavery We cannot be permitted to do that. Regulation of economy helps us to understand JSM’s desire for autonomy. He is more focused on the individual, not society

Paternalism Justified when Produce irreversible and destructive changes (accepting that sometimes we make irrational choicesl that we are not inevitably the best judges of what is best for ys) of our liberty (autonomy) ourselves Must be both irreversible and necessarily destructive (ie sucuide is destructive, heroin addiction need not be) in this sense Suicide might be full exercise of autonomy Right to die vs. assisted suicide - shows difference between liberty/paternalism

Decisions made under extreme psychological pressure where reisks not adequately understood (not freely chosen by autonomous actor)

Proportionality between deprivation and restraint in each case Least restrictive alternative must be chosen, and burden of proof on authority How do we interfere? Prohibition: Stop activity Restriction: Allow activity with caveats