Course:Law3020/2014WT1/Group D/Liberty-Paternalism

In a society that values individual liberty and freedom, law can only be justified in restricting the liberty of individuals under four theories: the harm principle, paternalism, legal moralism, and the offence principle.

Harm Principle

John Stuart Mill

John Stuart Mill

Born on May 20, 1806 in London, U.K., John Stuart Mill lived in the era of the 19th century urbanizing London. Mill lived in the midst of the Industrial Revolution, and his lifetime saw the development of the railway, the growth of London as a world capital, and with it, the birth of slums and poverty in various pockets in the streets of London. Such is the backdrop to which Mill's notorious concept of the harm principle is developed.

Mill was an economist and philosopher. He was influenced by Bentham's work on utilitarianism - that a law is 'good' if it maximizes utility. However, Mill's harm principle is in contrast to such; Mill argues that is law is justified only to prevent harm to others. The measurement of law using "utility" or "harm" illustrates the divergence between the two views.

Harm Principle Unpacked

Contrary to natural law or the separation thesis, Mill's Harm Principle does not seek to explain what is law, nor its relation or lack of with "morality."

Instead, the Harm Principle is premised on justifying a law through harm. Rather than a law being "good" because it is "moral," Mill departs from the notion of "morality" into the concept of the prevention of harm. A law will be justified if it prevents harm to others.

Modern Application

While Mill's principle is derived in the era of Industrial Revolution and the urbanization of London, the concept is applicable to both criminal and regulatory laws today.

The Criminal Code has express provisions prohibiting actions that will harm others. Most notably, homicide. Such is enacted to prevent harm done to another's body. This notion is further enforced by the Canadian Charter of Rights and Freedom, which protects against harm done to individual's life, liberty and security (s.7).

Regulatory provisions such as the allowable rent increase in the Residential Tenancy Act, prevents harm to a tenant, who may otherwise be subject to an unreasonable rent beyond a cost reasonable for basic survival. Similarly, the minimum wage standard as per the Employment Standard Act, prevents workers from being exploited and paid in an amount that will not sustain their basic needs to survive.

Case Study: Eldridge v B.C.

The effects of the Medical and Health Care Services Act appear to be a double edged sword when understood in the perspective of Mill’s harm principle. On the one hand, it does not limit autonomy in the manner that it does not make interpreters more ‘financially accessible’ for deaf individuals. On the contrary, the decision to not compensate individuals who use interpreters may discourage individuals who want or need to use it, but is limited in their ability to use it due to financial barriers. However, the method in which the decision was made to not compensate interpreters in the Medical Services Plan illustrates how Miller’s harm principle comes into play.

Mill’s harm principle states that limitation on individual liberty is justified when the limitation is to prevent harm to individuals. Harm is defined as broadly as any act that will harm others. Underlying this principle is that law is there to protect members of the society, and that limits on liberty is justified in order to protect all members of society.

However, the decision of who decides what type of legal rule to enact for the purpose of ‘protection against harm’ is controlled by a specific group. Also known as “the tyranny of the majority,” Mill’s principle illustrates the limitation is created by the majority who defines what type of harm requires limitation on individual liberty.

In Eldridge, the controlling figure is the Commissioner, who decides what type of medical services will be compensated in the Medical Services Plan. The Commissioner in essence, decides what types of services are “necessary” for individual, while other services can be limited (not compensated). The limitation on the other services are justified since the funds are allocated to prevent the harm to individuals who require the “necessary” services but cannot receive it due to financial constraints. In other words, the Plan validates that the harm of not having “necessary” services require protection through legislation, while the harm done to deaf individuals are not sufficient to warrant legislation providing financial assistance.

The tyranny of the majority illustrates the problematic nature of the principle; the assessment of which type of harm deserves protecting against, and the type of harm that do not, are measured by what the majority considers important – the majority require the “necessary” services, while only a minority require interpreters.

In the Mill’s framework, the Plan is justified, since legislation has chosen to protect individuals against the harm of not having the necessary services. Neglecting the possible harm to the deaf individuals was a choice made by the majority, and is justified since inevitably, not all harm can be protected against, but legislation has chosen which type of harm they must guard against. Viewed as such, the deaf individuals are at a disadvantage and perhaps a s.15 violation, but, as noted in the court, an under-inclusive plan does not necessarily equate to discrimination. Such illustrates how the conscious choice to persuade toward one object that neglects another object can have a negative effect on minority groups.

Mill’s harm principle is premised upon a prohibition on positive actions, while the Plaintiffs are arguing that the legislation’s lack of action is a violation. Viewed as such, the legislation does not violate Mill’s harm principle since there is no prohibition of a positive action that limits the liberty of the Plaintiffs.

Paternalism

Gerald Dworkin

Born in 1937, Dworkin is a century more modern to the era of Mill and the harm principle. Currently teaching in the University of California, Dworkin has taught at Harvard and MIT. His notion on autonomy and the justification of law is comparatively more modern compared to that of Mill. As such, Dworkin's theory appears to be applicable directly to the social values and laws currently, while Mill's concept must be read in light of the changing times evident in his era.

Prevention of Harm Against One's Self

Paternalism is premised under the presumption that individuals should be autonomous. Law is only justified in limiting one's autonomy only if the law is to prevent harm that will otherwise be borne onto the individual whose autonomy is being restricted. In this sense, paternalism can be seen as a law that restrict one to choose to do harm to themselves. Example of such would be the prohibition of assisted suicide, where an individual cannot choose to obtain help to suicide - the law seeks to preserve the life of the individual who would otherwise be able to choose to suicide through the help of another.

Critique

The difficulty of Paternalism is reconciling the theory in situations where there is no harm to one's self. For example, in Mill's harm principle, homocide as a prohibited offence is justified on the basis of protection for other individuals. However, how such law can be justified under Paternalism requires a deeper understanding of what is meant by protection of one's self.

Homicide can be seen as protecting the individual who commits the killing in several ways. It can be seen as protecting the individual from an irreversible action that the individual will not be able to alter later. In this manner, the offence protects the individual from the guilt and issues surrounding the aftermath or effects of killing an individual.

Case Study: Eldridge v B.C.

Contrary to the Harm Principle, in the lens of Paternalism, the Medical Service Plan will not be justified. Paternalism is centered on the notion that limitation on the liberty of the individual is justified to prevent harm to the individual whose liberty is being restricted. Medical Services Plan limits the liberty of deaf individuals by not mitigating the financial barriers they face in obtaining an interpreter when requiring medical treatment. However, such limitation is not justified. The limitation itself creates harm to the deaf individuals, through the failure to mitigate the communication difficulties that deaf individuals face when they seek medical treatment. This result is contrary to paternalism, since the Plan indirectly limits the medical services being compensated to deaf individuals, but it cannot be seen how the limitation is for the protection of the individuals.

Drawing on the analogy of homicide above, it may be possible that the limitation protects the individuals against the effects that would flow from not having the limitation. If interpreters are compensated under the Medical Services Act, possible effects may be backlash by other groups who claim the distribution of funds toward this group is not justified. The purpose of the Medical Service Plan is to provide compensation such that everyone have access to basic health care. If part of the funds are allocated for interpreters, that would inevitably mean that part of the funds are taken away from another benefit. As such, the limitation may be protecting the deaf individuals against a larger group who would lose benefits as a result of distributing funds to for interpreters. However, such analysis is more analogous to the framework of Economic Efficiency, rather than Paternalism.

Another possible way the Medical Service Act protects the deaf individuals is that the deaf individuals may grow to rely on the Act, thus becoming dependent on the benefits and failing to find alternative methods to fund their medical needs. However, such is more a hypothetical harm than a real and imminent risk.

In the analysis above, it can be seen that the notion of Paternalism is not an independent concept. Protection of individual must be understood in relations to what values or objectives are deserving of protection. Is the Medical Services Act justified because it protects against the possible issues of inequality raised by other groups? Or, would the Act not be justified because such is not a valid issue requiring protection? The notion of "protection" is abstract; should the protection be toward real and substantial risks, such as the regulation mandating wearing seat belts, or can it be protection toward a possible harm, such as the harm of individuals growing dependent on the benefits derived from the Medical Services Act? The line to be drawn on "protection" is not an absolute line, but rather, a negotiated boundary, and it appears to be set by the law-makers, while individuals, such as the Plaintiffs in the case, to re-negotiate its boundaries.

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