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

Liberty and Paternalism

Liberty and Paternalism depart from previous legal theories and is concerned with the proper limits of law. Both theories have a presumption in favour of liberty for the individual as an inherent right, and any interference by the state on that liberty must be justified.

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

• 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.

• 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 in harming themselves.

• Legal Moralism

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

• 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

Mill begins with the presumption of liberty for all individuals. He then is concerned with the proper limits of authority in law on that liberty and feels that liberty itself is inherently difficult and must be carefully controlled.

Mill notes the concept of liberty itself sets limits on authorities through:

• Political Liberties or Rights

Certain immunities of which it is regarded as a breach of duty for an authority to infringe. This is seen today in Canada through our enshrined rights in the Canadian Charter of Rights and Freedoms and provincial rights codes, including the British Columbia Human Rights Code.

• Constitutional Checks

A system that requires consent from a body of some sort that represents the interests of the community in reviewing the power of authorities. This is seen today in Canada through our Parliamentary system and democratic self-government, whose powers are derived and embodied in the Constitution.

Harm Principal

Mill feels the fundamental party to protect in society is that of the individual. Society provides that protection through law. As society provides protection, Mill asserts that we, as individuals, have a necessary obligation in return to contribute to the maintenance of that society, defend it as necessary, and ensure that we do not contribute to the harm of others within it. As such, Mill believes in a strict application of the harm principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but prevent ion of harm is a necessary condition of legitimate interference with liberty.

Tyranny of the Majority

Mill noted the popularity of self-government and democratic rule, in which the public itself became part of the authority that controlled the limits on liberty. The problem with self-government is the danger of creating a tyranny of the majority. The Tyranny of the Majority is when society itself becomes the tyrant and collectively imposes its power over the individuals who compose it. Society can and will often pass its own mandates, and if it passes mandates that are incorrect or not necessary, through social tyranny the power of those mandates can become oppressive, enforce conformity, and leave fewer avenues for individuals to escape from improper limits on their liberty. The Tyranny of the Majority includes social tyranny through prevailing opinions and feelings. Mill felt that there needed to be a limit on the inference of collective opinion with individual independence and finding that limit is necessary to protect liberty and prevent political despotism.

Exceptions to the Rule of Liberty

Mill notes that the right to liberty does not apply to children under the age limits set by law for adulthood or ‘nonage’ societies that are ‘backwards’ in their social development. Mill notes that these parties must be protected by others with mature faculties against harm from their own actions and the actions of others.

Gerald Dworkin and Paternalism

Paternalism challenges Liberty and expands on the idea of the harm principle as justification to limiting individual liberty. Paternalism argues that interference with individual liberty is not only justified in prevent harm to others, but is also justified in preventing harm to the person themselves. This is also true in cases where prevention of individual harm incidentally leads to prevention of harm to third parties. Paternalistic interference preserves autonomy, which Dworkin asserts is analogous to liberty.

Dworkin introduces several other justifications for limits on liberty:

• Limiting liberty where it produces irreversible and destructive changes of personal liberty/autonomy. In example, through irrational choices or addiction.
• Limiting liberty where decisions are made under extreme psychological pressure and the risks are not freely chosen or understood. In example, suicide or confessions.

Contrasting Liberty and Paternalism with Other Legal Theories

Many of the concepts considered as valid justifications for the limits of law fit within the moral framework of earlier theories set forth by legal positivists and natural law theorists. For example, the harm principle itself is focused on the interests of every person not to be seriously harmed by others. This interest is certainly a requirement of the common good found in both positivism and natural law and supports integration of morality within a legal framework. However, it should be noted that Liberty theorists will stress the fact that liberty itself allows for expression of morality, therefore justification of law comes from restraint on limiting liberty through creation of social rights which embody moral values preventing harm in society, not through justification that the moral values themselves create law.