Jon Holbrook reflects on why John Stuart Mill is a better guide to “liberty” than judicial precedent
Writing in The Guardian Simon Jenkins observed how issues of social policy often call for a philosopher yet “all we get are bloody lawyers” (“Our addiction to criminalising human behaviour makes a mockery of private responsibility”, 6 November 2014). His point being that deep thinking about social issues is often curtailed by the lawyer’s resort to judicial precedent.
This criticism cannot be levelled at Mr Justice Mostyn who ruled in November on whether the caring arrangement for Katherine, a woman who lacked the mental capacity to make decisions for herself, amounted to a deprivation of her liberty (Rochdale MBC v KW [2014] EWCOP 45, [2014] All ER (D) 200 (Nov)). Mostyn J observed “that the first question I have to answer is what is ‘liberty’ for Katherine?” This, he noted, “is obviously a big question”. And he proceeded to answer it with citations from John Stuart Mill’s essay “On liberty”.
By approaching this big question as a philosopher might, Mostyn J noted that
