Jurisprudence and Paternalism as a Curtailment of Liberty - Case Study Example

In a liberal democratic society, paternalism is often indispensable. Although many view paternalism as a curtailment of liberty, many also view it asa form of protection from the harms that human beings are capable of inflicting on another. John Stuart Mill, although opposes paternalism, argues that it is justifiable to limit liberty as long as these constraints aim at preventing harm to be inflicted on other people. However, problems with regards this ‘slight’ paternalism arise as it involves the imposition of punishments on some private actions – actions which for many do not pose harm or should they be harms, these are merely inflicted on oneself. Others argue that the criminalisation of some private and ‘harmless’ acts makes paternalism a hindrance to liberty and thus, it should be used sparingly or not at all utilised. Some scholars contend that the context and nuances of ‘harmful’ and ‘harmless’ are too broad and must be properly defined. Still, questions remain with regards which acts the state should criminalise and acts which the state should consider private and harmless. This paper will maintain Mill’s argument that acts which evidently harm others should be criminalised. It will further argue that consensual acts in which consent lacks validity should also fall under the scope of the law and the control of private and ‘harmless’ behaviours fall beyond the aforementioned categories and is none of the state’s business. However, the criminalisation of these acts, as Mill had argued, should not be meant to unnecessarily augment the power of the state. In his work ‘On Liberty,’ John Stuart Mill brought forth the most compelling clarification on the distinction between liberalism and paternalism. He argues that ‘the only purpose for which power can be rightfully exercised’ over citizens, against their volition ‘is to prevent harm to others’ adding that ‘the individual is sovereign’ over himself (Mill, 24 ). However, Mill’s ‘harm principle’ has come under attacks - the most prominent of which was put forth by Arthur Ripstein. Ripstein argues that Mill’s harm principle should be abandoned as he brings forward the notion of ‘equal freedom,’ an idea derivative of Kant’s and which he believes afford the more ‘legitimate basis for criminalisation’ (Ripstein 216-219). For Ripstein, Mill’s principles fell in short in scope as it failed to include considerable ‘class’ of ‘violations’ that do not necessitate criminalisation or prohibition. He adds that the harm principle failed to define fully the distinctive status that it gives to harm especially on when or why harm should be substantiated and when or why harm is germane to criminalisation and the formulation of a legislation. Ripstein cites harmless trespass as one example. For instance, a person intrudes into your property while you are out. The intruder does not make any damage whatsoever to your locks and door and takes a nap in your bed. The intruder takes extra precautionary measures such as wearing a hypoallergenic sleeping garb or not leaving any trace or anything that may inconvenience anyone. He does this and leaves and as a result has not harmed anyone. As the whole purpose of the harm principle, according to Ripstein, is to illustrate that negative behaviour and intentions must result to negative consequences in order for it to require prohibition. The act of intruding into someone’s home and sleeping in his bed, as long as the intruder goes in and out without leaving a trace or creating discomfort, is harmless (220-246). Although Ripstein agrees that this action needs to be criminalised, this cannot be validated as a harmful wrong. Hence, the harm principle is categorical, does not provide exceptions to deeds that produce no harm and should be replaced by his sovereignty principle. Baker, on the other hand believes that Ripstein’s trespass is far from harmless. This intrusion is a threat to a person’s security as well as sets back ‘the interest’ that the owner being intruded in maintaining his property which provides him a secure abode. The effect of losing one’s sense of security is already a considerable harm. Consider for instance if the law allows others into your property as long as they do not ‘harm’ you. The psychological harm this can inflict on a person is considerable as Furlong also asserts that this kind of intrusion is a ‘gross violation’ of our rights to privacy and endangers the structure of our property law (Baker 93). In the case of North Dakota v Shane Just, for instance, the complainant alleged that Shane Just set up a video camera on the aperture of the window of his own bathroom and laundry room and surreptitiously videotaped several women changing their clothes. This is a case parallel to Ripstein’s ‘harmless trespass’ contentions as first, the women used Mr. Just’s bathroom – he did not intrude into someone else’s ‘privacy.’ Clearly, he had harmed no one. Ripstein’s argument states that a bad action should result to a bad consequence. Should the videotape be considered a bad consequence as long as he keeps it for his personal viewing? Ripstein would clearly answer negatively as his ‘trespasser’ viewed and took a good look at someone’s room and personal effects without harming anyone. If the trespasser came across a diary, read its contents and yet did not spill the beans on one’s ‘dark secrets,’ the trespasser, for Ripstein, had done no crime (Ripstein 223 ). Shane Just took a videotape but neither touched nor harmed the women. However, the North Dakota court convicted Shane Just of twelve counts of surreptitious intrusion. Clearly, a harmless trespass or a harmless videotaping is not a crime for Ripstein but they evidently are an intrusion to privacy. A stranger rummaging through your personal items and a voyeur watching your every move both have the manifestations of a criminal. Thus, for Baker, Ripstein’s arguments failed to afford the legislature ‘sufficient guidance’ on which deeds require criminalisation and which ones do not (Baker 98). It is also important to remember that the purpose of the harm principle is to protect the interests of those who are at risk of being harmed and make sure that people are thwarted from harming anyone. The function of the law, in most instances, is to prevent harm or offense to be done as well as to protect the interests of those under the scope of the states’ responsibilities and not just to ‘punish’ and rehabilitate those who have already made offence. Mill made it clear that certain acts such as rape, murder, assault, arson and robbery are not paternalistic because these acts are harmful to the ‘unconsenting others’ (Suber 1-5). In fact, criminal laws and legislations in most liberal democracies pursue Mill’s contentions with regards the harm principle. However, consensual acts in which consent lacks validity should also fall under the scope of the law. Mill’s assertions for instance, come in conflict with the dangers of self-harm or what Peter Suber describes as ‘competent self-harm,’ harm with consent and actions deemed harmless. Mill made sure that these acts should be beyond the regulation of paternalism as Suber asserts that the aforesaid acts are ‘victimless.’ Mill contends that these kinds of actions be ‘decriminalised’ as well as ‘paternalism over competent adults (Suber 3). Under these types of deeds, a person may do as he wishes and should be left without the intervention of the state even if it has ‘benevolent’ intentions (Suber 4). However, problems arise with regards these categorizations as Mill’s principles on harm do not frustrate paternalism as they allow ‘incompetent’ individuals to make their own decisions or give consent as for instance, to be harmed. Competency therefore is a requirement for criminalisation or decriminalisation of a consensual act. The same sets of inquiry were put forth by Peter Suber with regards validity of consent: Which actions harm only the self and which deeds should be considered harmless? This can be illustrated through a bicycle rider who by law is required to wear a helmet and gets into accident not only harms himself, but could possibly harm other people, as for instance, he toppled a road sign or cause destruction to another person’s property as a result of an accident. Clearly, the criminalisation of an act of those who refuse to wear helmet while riding a motorcycle or those who refuse to wear seatbelts have paternalistic denotations, yet these are laws which prevent harm to oneself as well as to others. Obviously also, a person who cuts his wrist in the privacy of his abode is as long as he is psychologically competent is an example of self-harm that should not be criminalised, although many experts in behavioural science would dispute the claim that someone who cuts his wrist is ‘emotionally competent.’ The main consideration here is that the person is not considered a criminal or the act a crime at all In Vance v Judas Priest, two young individuals barely out of their teens were listening to Judas Priest’s music when Vance’s mother knocked on the door. The boys jumped out of the window and went to nearby church where they shot themselves with a shotgun. Vance’s friend died instantly but Vance survived. The parents filed wrongful death charges against Judas Priest claiming that the boys were compelled to commit suicide after listening to the message on Judas Priest’s music. The court ruled in favour of Judas Priest. This evidently is an example self-harm – an act that harms only the actor - inflicted by both competent individuals to themselves in the absence of coercion. A criminalisation of this act or the treatment as criminals or accessory to a crime those who ‘lead’ or indirectly caused the consensual adult to commit this act is an injustice. There are instances, however, when legislations become interventions. The criminalisation of certain trivial deeds results to a formation of a legal morality and sometime seems to unjustly augment the power of the state. Liberals see this as an impingement on sovereignty of individuals. The state protection afforded to children, for instance, which prohibits parents to ‘strike’ their children hard, has been viewed either as paternalism or legal moralising by many (Reeves 48). Dennis baker argues that Mill’s harm principle do not just aim to minimise criminalisation but also to achieve fairness and justice. The augmentation of the state’s power as long as it is checked should not alarm those who value sovereignty. Murphy (Murphy in Baker 68) asserts that the function of the law is ‘to maintain a system of peace in which individuals will ‘enjoy the most extensive liberty’ comparable to the liberty enjoyed by others. For him, this is the only justification why a rational individual should ‘contract’ to give up freedom as this is the only rationale to concede to state coercion. Criminal punishments function in order to ‘[maintain] a peaceful system of ordered liberty.’ Furthermore, laws usually experience an evolution and must conform to the changes of our time. The emergence of laws, its formation is fundamentally tied to the experience of the collective group of people. Most often, laws even manifest moral and cultural predilections of a society. We have seen in much of the human history how freedom usually swerves legislation towards the maintenance of freedom or for the achievement of a just society. Consequently, cautious paternalism coupled with the justifiable criminalisation of acts that harm others, the respect for consent and individual sovereignty and the vigilance towards unnecessary power augmentation by the state should be considered for criminalisation or decriminalisation of a deed. WORKS CITED Baker , Dennis. "The Harm Principle vs The Kantian Criteria for Ensuring Fair, Principled and Just Criminalisation." The Australian Journal of Legal Philosophy 33(2008): 67-99. Mill, John Stuart. On Liberty. Indianapolis: Hackett Pub. Co., 1978. (Original, 1859.) North Dakota V Shane Just No. 20060146, 2006 ND 225 (2006) Reeves, Richard. "Even in a truly liberal society, paternalism must sometimes prevail." New Statesman 134.4720 (Jan. 2005): 46-48. Ripstein, Arthur,Beyond the Harm Principle. Philosophy & Public Affairs, Vol. 34, No. 3, pp. 216-246, 2006. Suber, Peter. "Paternalism."Philosophy of Law: An Encyclopedia. 3rd. 1999. Vance, J., et al. v. Judas Priest et al., No. 86-5844, 2nd Dist. Ct. Nev. (August, 24 1990) Read More