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 a 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 despotic and must be carefully controlled.
Harm Principal Mill supports a much stricter version of the Harm Principle. Prevention of harm itself is not only a sufficient justification for the limiting of individual liberty through law, but it is a necessary condition of legitimate interference with that liberty.
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.
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.