Course:Law3020/2014WT1/Group R/Liberty-Paternalism
Introduction:
With John Stuart Mill, we depart from the question of “what is law?” and instead focus upon the question of when, and if, law should interfere with the rights of the people. While Aquinas advocated intervention for the greater good, Mill proposes a somewhat different form of societal direction.
Overview of Liberty:
Liberty is a belief premised in the idea that the individual should have as much freedom as possible in order to enjoy their individualism. The rights of the individuals are sacrosanct in comparison to the state, except in dire circumstances. This is not to say or indicate that such an intervention can never occur, but it sets a threshold in that state interference may only be used to preserve the liberty of others.
Limiting State Authority:
Contrary to first look, unbridled individualism is not the intent of liberty. Rather, the interests of the individual should stay with the individual’s concerns and the interests of society should remain with society.[1]This is because society is based on the contributions of all individuals in exchange for the protection and unity offered by society to those individuals.[2] A strict line of conduct in this regard is maintained and comprises two main factors: respecting the interests of others and contributing to the maintenance and well-being of society overall.
These are the limits to prevention of interference in people’s lives. If someone does not contribute to society, then society may compel such contribution if it sees fit to prevent a person from withholding from society.[3] Further, if an individual’s actions affects the interests of another in a negative way, then society may take action and the question of whether the common good will be affected must be considered.[4] However, should the actions affect only the individual, or if they cause harm but do not violate any actual rights, then punishment is only opinion-based and in the eye of public discussion, not legal sanction.[5] Simply, serious harm should be impeded, but personal choice that causes no harm but might be foolish should be pitied but not prevented.
The Harm Principle:
The main idea behind Mills theory, in short, is the Harm Principle.[6] Essentially, this idea is the premise that members of society may be restrained to prevent serious harm to others, such as violence and the use of force or fraud.[7] Preventing serious harm to others is, under this theory, a sufficient basis to reasonably to interfere with the liberty of individuals to preserve the public good.[8] Mills, however, takes this doctrine slightly further to the idea that serious harm is a necessary ground for intervention to prevent harm to others.
Authority as Good:
A government is not a bad thing inherently, but it must be controlled to allow the individual to flourish. Fundamental rights, such as speech and expression for example, should be immune from government interference and control. Government must have checks and balances and follow its own rules lest it becomes a tyrant upon its own people. This, in Mill’s view, would be unacceptable infringement upon the rights of the individual. He equally opposed a tyranny of the majority upon the minority. With the sense of authority of good acting to preserve the individual’s rights, the issue arises as to how far this consideration should go.
Application to the case: B.M. v British Columbia[9]
The case of liberty seen here is a case most sad. While B.M. was pursuing her liberty, she was prevented in doing so by the dangerous actions of her former spouse. The failure of the police and society to intervene would have shocked Mill.
The shock arises from the fact that B.M.’s liberty was violated and society, as well as those destined to protect us, did naught but stand there while she was forced to live her life in fear before she was forced to flee for her life while her friend was murdered. This is particularly troubling as one of the judges stated that the police are “guardians, not guarantors, of public wellbeing.”[10] This would be an outrage for Mill as threats and murder would fall within the “serious harm” imagined by Mill that would justify society’s intervention into the lives of both B.M and her former spouse in order to prevent this tragedy. Such intervention would have taken the form of restricting the former spouse’s movements and liberty in order to protect B.M.’s liberty and security.
The majority judgment in this decision, that no individual duty was owed to B.M, would be deemed incorrect by Mill. Society has a duty of care to preserve liberty and safety of all involved as that is the point of society—everyone contributes to general well-being while maintaining and ensuring their individuality as a result. This is in line with the view of the dissenting opinion that found B.M. as a person in need of protection, which came to the conclusion that a duty of care should have been found.[11]
Despite a failure to carry out the duties of protecting liberty, this was not because the rules were not in place. The police had a policy regarding a timely response to domestic violence which emphasized the importance and consideration of safety for the victim.[12]The intention was to carry out arrests and prosecute the accused.[13]
With regards to B.M.’s former spouse who went on a murderous rampage, a liberty-based society would have intervened quicker to eliminate the violence and prevent the interruption to liberty and social good. The concerns involved here were not, by Mills’ standard, dealt with in an appropriate manner.
Final Thoughts
The application in this case of a liberty-based society would not have been objected to by B.M. The ability to pursue her life in safety and freedom, knowing that her liberty was protected, would have been a noble comfort to her. Sadly, she was did not receive this protection and her friend died, in addition to her family being terrified and society stood by. Even more sadly, those charged with protecting liberty by interfering in liberty to do so, the police, stood and did nothing. For her contributions to the community as a whole, B.M. was terrified and faced death, and no thought to interfere with the liberty of someone dangerous to protect someone innocent. The judge’s decision that there was no duty of care to do so erodes the community fabric that underlies Mills’ ideal and prevents people from living in liberty while also in freedom since there is no guarantee that either, as per the majority ruling, will be protected.
References
- ↑ Dimock, Susan ed, Classic Readings and Canadian Cases in the Philosophy of Law (Toronto, Canada: Pearson Education Canada, 2002) at 308.
- ↑ Ibid at 308-309.
- ↑ Ibid at 309.
- ↑ Ibid.
- ↑ Ibid
- ↑ Ibid at 303
- ↑ Ibid
- ↑ Ibid
- ↑ B.M. v British Columbia, [2004] B.C.J. No. 1506, 2004 BCCA 402, [B.M.].
- ↑ Ibid at 64
- ↑ Hall, Margaret Isabel. "Duty, Causation, and Third-Party Perpetrators: The Bonnie Mooney Case" (2005) 50 McGill LJ 604, at 602-603
- ↑ B.M. v British Columbia, at 50-51
- ↑ Ibid at 51