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

John Stuart Mill and Eagan v Canada

To understand the principles that would be applied by John Stuart Mill, we will examine the principles through Polygamy:

• Polygamy is potentially harmful because it forces many women to share one man, and that would not be fair.
• BUT it should be legal because ultimately the individual is the best judge of their own situation, and society should really step back.

Indented line * Polygamy should be legal, but closely observed because of the potential for harm to be done

Polygamy is different than gay marriage:

• In gay marriage, there is no harm to one-another (no sharing with other people)
• Limits are only justified where harm is done to another person, however minimal that harm is.
• In the case of gay marriage, no harm is done to a third party.

Indented line * An individual choice by two people who happen to be of the same gender to get married = private business

JSM would actually argue that the judgement in Eagan v Canada was wrongly reasoned, and that the ‘policy reason’ regarding the greater benefits the couple would gain from not being married was a paternalistic interference with individual liberty that was unwarranted .

Stephen Colbert

Alternate Ending 1 Potentially the court would have gotten away with the ruling if they’d approached gay marriage through the lens of legal moralism and argued that gay marriage was an act that undermined social/community values (like possession of child porn in R v Butler and R v Shark).

• But likely they would have failed here as well, given that JSM has already stated the greater extreme – polygamy – should be legal and does not warrant interference from the state.

Stephen Colbert

Alternative Ending 2 If the historical context of the judges is considered, potentially they would have relied on JSM’s concept of non-agedness to state that homosexual persons were not of a sufficient capacity to make decisions concerning their personal lives, similar to children. By ruling homosexuals non-aged persons, the court could have justified infringing on the Plaintiff’s autonomy as JSM states that despotism is an acceptable form of rule or interference for non-aged persons.