Course:Law3020/2014WT1/Group O/Liberty-Paternalism
Liberty-Paternalism
John Stuart Mill, Liberty, and Paternalism
This theory is concerned with determining when law should interfere with the private actions of individuals, and when it should be justified. It is a balancing act, we must balance our liberty with other values. However, there is always a presumption in favour of liberty. John Stuart Mills the leading theologian in this area, believes that restriction of individual liberty can be justified in order to prevent serious harm to others. Legal moralists believe that a restriction of liberty can also be justified when the actions of other individuals will disrupt social or community morals and values. Mills takes a realistic approach to government authority, we need authority in our lives but we need to control that authority. He sees the government as a great “taloned bird”, that can turn the talons to the outside would but also against its own society. Therefore, he feels limits need to be set. These limits include recognizing rights to create certain immunities from government. Checks on government authority. Making our governments elective and temporary so that they answer to the people. Within this principle however Mills represents that there is a danger of “Tyranny of the Majority.” We cannot allow the majorities beliefs to supress minorities, so we have to find a balance and maintain it.
We all gain the benefit of living in society but have to do our part to protect that society if needed, as well as to abstain from harming others in society. Harm to others can include one’s own extravagance, if this occurs the state will punish me for the harm I cause through that extravagance. Paternalism, as evidenced by its name deals with the state interfering with individual liberty in order to protect citizens from harming themselves, which can also serves to prevent harm to third parties. In a way, by interfering with autonomy the state is protecting future autonomy by preventing those who would squander it from doing so. They feel that sometimes the state must legislate and interfere with individual autonomy in order to ensure that collectively we all benefit. While those who believe in liberty and those who believe in paternity may differ somewhat they agree in the idea of autonomy. They believe that we must maintain a core level of independence, sometimes that means protecting ourselves from state action and sometimes that means ensuring the state protects us from ourselves.
Comparison with Ronald Dworkin
Dworkin would state that law is comprised of principles. These principles are all part of the law therefore they are legally binding, judges then apply these principles. Where Liberty theologians such as Mills would take exception to this idea, is if those principles interfered with individual autonomy. Furthermore Dworkin was attempting to identify what is it about law that makes it law. His discussion was centred on principles. Liberty and Paternalism are not concerned with those kinds of questions. They are simply concerned with when the law should interfere in people’s lives[1] .
Application to Case
At issue in this case is legislation created by the government that increased the maximum accommodation charges that can be enforced in long term care facilities for the elderly. [2]. Under the Canada Health Act these are allowed as long as they do not exceed a maximum amount[3]. What the government had essentially done is created a positive right for citizens, the government will pay for the care of citizens as they get older. Paternalists would agree with this. By making it a right to have equal healthcare it ensures that all society is benefited. It would prevent one person from causing harm to others by pursuing a form of healthcare that would provide immediate individual interests at the cost of collective interests. If these accommodation charges are a valid part of the larger legislation, paternalists would agree with their continued existence. If they serve a function to protect autonomy by ensuring no one sacrifices the collective autonomy for individual then it would be a valid exercise of government power. Where we really see the complications of applying liberty theory to this case is in the courts analysis of the fiduciary duty.
Fiduciary Duty
A fiduciary duty to Liberty and paternalist thinkers would be an interesting concept. The very idea of a government fiduciary duty is to ensure that the government protects a single groups interests over all others[4]. It is therefore very difficult to establish such a duty and the court in this case feels that one is not made out[5]. Mills could potentially disagree with this assessment. A Fiduciary duty would be an example of a group harnessing the great “taloned bird” and turning those talons not outside of society but against different segments of society. This duty would not limit personal autonomy but would instead forcefully protect the autonomy of a select group of society.
. In this instance government action would not be imposing conditions on these people but would instead be preventing others from interfering with those individuals. This could be the greatest protection of personal autonomy because the institution that has the greatest ability to interfere with autonomy is now protecting it for a group in society. Furthermore, this could also lead to a degree of protection from the “tyranny of the majority.” By allowing these individuals to gain such protection it will ensure that they are not case aside by the majority. However, eventually Mills and similar theorists would determine that this is unwise. Having the government protect the autonomy of certain individuals over others would eventually lead to that government infringing autonomy of other members of society. They would have to prioritize the values of the select group over the rest of society, this could result in greater taxes for the majority of society or even an unfair balancing of rights in favour of the select group. This would be irreconcilable with liberty and paternalism because it would throw off the balance.
We know that deciding when to allow government to interfere with our autonomy it always requires a balancing of values. In this case the balance on one side would be the autonomy of a small segment of the population at the expense of the majority of society. Therefore it would be an invalid interference with the autonomy of the majority. There are also limits to liberty that arise because we live in a society. Certain things are expected of us. We owe an obligation not to harm others within that society. By forcing the state to serve as a fiduciary for a small group of people it will cause harm to others. This has to be limited. Another rather insensitive argument that could be put forward is in regards to the mental capacities of the elderly. Mills feels that only those who qualify for protection of liberty are those with the mental capacity to be guided to their own improvement through lively debate and persuasion. As we age we lose our ability to care for ourselves. That is one of the reasons why, as in this case, we have these long term care facilities[6]. If Mill’s principles are truly to be followed elderly peoples would not be able to qualify for the protection of autonomy present in a fiduciary duty, because they no longer have the mental faculties to have the right to liberty. In conclusion, while at first glance a fiduciary duty may be appealing to Mills and his fellow thinkers, upon further observation it would go against their core principles.
Negligence Claim
The courts dismiss the claim in negligence against the government[7]. In this instance Mills would disagree. Allowing claims even with insufficient evidence would be more in line with his theory then dismissing them. The goal is to limit state intrusion on personal autonomy, therefore allowing these kinds of checks on government authority to proceed would ensure that no unjust interference is overlooked. We see this line of thinking present in the plaintiff’s peas in regards to unjust enrichment.
Unjust Enrichment
The court allowed the claim for unjust enrichment to proceed[8]. Liberty and Paternalists would agree with this decision. The reason the court allowed the claim to proceed is because it would be unjust to allow an invalid law to be used to collect excesses of money from citizens[9]. This can be an example of a government unjustly violating a person’s autonomy. By unlawfully taking money you are interfering with their choice on how to use that money thereby interfering with their autonomy. Furthermore, a paternalistic balancing of collective autonomy versus individual autonomy would not be applicable in this instance. As the only benefit gained is money for the government at the expense of individual autonomy. Therefore, Mills would agree with the court’s decision to allow a potential punishment of government for the harm it has cause. Should evidence be presented that the government was acting contrary to the interests of society they will have that money taken away, and the harm they have caused will be reimbursed. A claim such as this is also an example of the proper functioning of the hierarchy of society according to Mills. He believes that authorities such as governments act as delegates of the people. They are elected and can be ousted. This is an example of individuals limiting authority. They are preventing the authority from taking advantage of the position the people have put them in. Mills would therefore agree with all aspects of the court’s decision regarding unjust enrichment.
Conclusion
In conclusion we see that Liberty and Paternalist thinkers would be in favour of the overall legislative action challenged in this case. They would also be in favour of the disallowance of the fiduciary duty as it would unjustly interfere with the majority of society’s autonomy. Mills would disagree with the dismissal of the negligence claim but would agree with the allowance of the unjust enrichment claim, as it is an example of society ensuring there are no unjust interferences with autonomy.
References:
- ↑ All information regarding Liberty and Paternalism and Ronald Dworkin taken cumulatively from Susan Dimock, Classic Readings and Canadian Cases in the philosophy of law, (Toronto: Pearson education Canada, 2002) and Lecture Material Presented by Professor Margret Hall.
- ↑ Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, at para 14 [2011] 2 SCR 261.
- ↑ Ibid, at para 8
- ↑ Ibid, at para 43
- ↑ Ibid, para 63
- ↑ Ibid, at para 1
- ↑ Ibid, at para 75
- ↑ Ibid, at para 96
- ↑ Ibid, at para 87
Links to further treatments of the case:
| Legal Perspectives | Philosophers | |||
| Natural Law | Thomas Aquinas | |||
| Legal Positivism | John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz | |||
| Separation Theory | HLA Hart and Ron Fuller | |||
| System of Rights | Ronald Dworkin | |||
| Liberty and Paternalism | John Stuart Mill and Gerald Dworkin | |||
| Law and Economics | Susan Dimock | |||
| Feminist Jurisprudence | Patricia Smith and Catharine Mackinnon | |||