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

The Harm Principle: John Stuart Mill

John Stuart Mill in his essay, In Defence of Liberty, sets out his theory which focuses on the extent to which an individual can be governed (or interfered with) by society and the ruling class. There are a number of questions that Mill seeks to answer; predominantly, should the law be used to enforce the moral code (norms) of society, followed by the type of restrictions on the liberty of individuals that could be justified. In essence, Mill is attempting to conclude that, “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.”(306) Mill’s theory revolves around what is known as the harm principle. This principle suggests that society is only justified in restricting the liberty of its members only when it is necessary to prevent (serious) harm to others. Many other theories, from positivists to natural law, can be seen to support this principle. He brought forth this idea in a common sense way as it is in everyone’s self-interest to be protected from harm from others, “the prevention of harm to others is not only a sufficient but also a necessary condition of legitimate interference with the liberty of citizens by law.”(303)

John Stuart Mill is very wary of the possibility of tyranny of the majority, especially the tyranny of the prevailing opinion and feeling. In his view, society should not be able to impose its own ideas and rules of conduct on any other citizen (306). Protection from the group is very important to Mill, as each individual is independent over himself, his body and his mind; each person is their own sovereign. He sees a theory of “social rights” as an affront to the freedom of individuals. According to Mill, social rights will always be in violation of one group’s perception of the ideal, “So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it would not justify…”(317)

In respect to moral vices and poor moral character, Mill does not advocate for punishment from society as long as one’s actions only affect himself. He establishes that one has a duty of self-respect and self-development, however the individual has no accountability to other’s in society as it is not, “for the good of mankind that he be held accountable.”[1] Furthermore, instead of punishing those individuals for mismanagement of their lives, it would instead be more prudent to alleviate their suffering by showing them the right path through socialization. In order to ensure that people grow up to be good citizens capable of being contributing members of society, it is essential for them to be raised correctly while they are still young, “If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives, society has itself to blame for the consequences.”(313)

Above all, Mill asserts that individuals will endeavor on their own path, and their personal actions, no matter how offensive to the morality of society, should not be governed by others.

Paternalism

Dworkin offers an expansion to Mills harm principle. He asserts that interference is justified when failing to do so would result in damage to the individual.(321) Gerald Dworkin argues that there are a large number of cases in which paternalistic interference in the liberty of other individuals can be warranted (321). In situations where individuals make decisions which have, “far-reaching, potentially dangerous and irreversible” consequences then restricting freedom can be justified (321). Dworkin suggests that, “if the consequences are likely to significantly undermine the person’s ability to make free, rational and autonomous decisions,” then a rational person would consent to some restrictions in order to prevent harm to themselves (321). In these circumstances, Dworkin argues that the state would be able to intervene.

Application to Geffen v Goodman Estates

The presumption of undue influence is a principle that liberalism may not have much commentary on. There is not an apparent infringement of individual liberties in the application of the presumption.

However, Mill might assert that this presumption is too broad and might attempt to remedy situations where the “victim” had intended to enter into the transaction. Mill believes self-autonomy to be the utmost importance and saddling relationships with presumptions such as this might ultimately threaten an individual's freedom of choice. Just because something might appear to be a bad deal, it is not up to the courts to place value on the decisions of individuals. Based on this, it is likely that Mill would agree with the decision of the court to let the agreement stand.

In contrast, Dworkin might suggest that the presumption of undue influence protects minority parties who may be unable to protect themselves, providing them with a means to get out of an unfair relationship.