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

Liberty-Paternalism

Personal liberty is presumed to be free from legal restrictions. However, liberty must be balanced against competing interests. Therefore, questions arise as to when and why, should the law interfere with liberty and when is interference with liberty justified.

There are four possible justifications for the law’s restriction on liberty. 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 to protect individuals from harm due to the exercise of their own liberty. Mill rejects this justification except in the case of children and those without mature faculties. Legal moralism states liberty should 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. One way to limit authority is through liberty. Certain liberties or rights such as political ones are recognized as being immune from government authority, rights and liberties recognized in the Constitution are protected from government infringement, and authority being given temporarily by the people to the government through election. The potential 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.