Course:Law3020/2014WT1/Group C/Liberty & Paternalism

Liberty and Paternalism

Liberty and paternalism depart from previous legal theories and is concerned with the justification of when and why law should interfere with individual liberty. These theories have a presumption in favour of liberty, and any interference by the state on that liberty must be justified.

There are several valid justifications for law’s restriction of liberty:

1. The Harm Principle

• The harm principle allows the restriction of individual liberty by law if it promotes the prevention of serious harm towards others in society.

1. Paternalism

• Paternalism allows for the restriction of individual liberty by law if it protects others from harm through the exercise of that individual’s liberty.

1. Legal Moralism

• Legal Moralism allows the restriction of individual liberty by law is where the individual’s actions undermine societal morals and values.

1. The Offence Principle

• The offence principle allows for the restriction of individual liberty by law if it ensures that the sensibilities of others are not unduly offended.

John Stuart Mill and Liberty

Liberalism is concerned with determining when and why the law should interfere with individual liberty. This theory is headed by the thoughts of John Stuart Mill.

Harm Principal

Tyranny of the Majority

Limits on Liberty

Exceptions to the Rule of Liberty

Gerald Dworkin and Paternalism

Paternalism challenges liberalism and argues that there may be situations in which interference with individual liberty is justified. This theory is headed by the thoughts of Gerald Dworkin.