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Moral Theory and Legal Practice


Antal Szerletics

This book explores and critically evaluates conceptual and justificatory models related to paternalism in the context of moral philosophy. Paternalistic interventions promoting someone’s good or protecting the person from self-harming actions raise controversial questions from a legal and an ethical perspective. The tension between the benevolent character of paternalism and its interference with personal autonomy seems to hinder the development of a coherent theory that could specify the «proper» limits of protective state interventions. The theoretical investigation is complemented by selected cases from the jurisprudence of the European Court of Human Rights and the Constitutional Court of Hungary.


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2. Definitional and justificatory questions


19 2. Definitional and justificatory questions 2.1 Defining paternalism I will give an overview of the concept of paternalism in this chapter. First, I am going to discuss the etymological questions related to the expression. In order to conduct an impartial examination, it seems necessary to reveal any negative connotation that has become attached to the concept during its historical de- velopment. In the second part, I analyse different definitions of paternalism and critically examine core conceptual elements that might be considered as con- stitutive for an ‘adequate’ definition. Particular emphasis will be placed on the questions of autonomy and benevolence because paternalism seems inseparable from these concepts in most cases. Since paternalism often overlaps with other liberty-limiting principles, conceptual clarity requires that we separate it from other ‘external’ principles commonly used to justify intervention to someone’s liberty (cf. the third part of this chapter). Finally, I will make distinctions within the concept itself and give an overview of the different types of paternalism that have been identified. 2.1.1 The origins of the expression The presumption that paternalism is rooted in fundamental human character- istics such as empathy and benevolence implies that paternalistic behaviour has been present in social interactions from a very early age. The expression, how- ever, seems relatively new. Kleinig claims that the word ‘paternalism’ appeared only in the late 19th century reflecting the proliferation of ‘-isms’ in this period.9 Accordingly, the first illustration of the word in the Oxford English Dictionary dates back to 1873, mentioning...

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