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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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5. Applications


165 5. Applications 5.1 Paternalism in the jurisprudence of the Hungarian Constitutional Court 5.1.1 Preliminary remarks The expression ‘paternalism’ (i.e. its Hungarian equivalent, paternalizmus) ap- pears only four times in the jurisprudence of the Hungarian Constitutional Court.569 This does not mean that the Court did not have to deal with consti- tutional issues related to paternalism. Since it has started functioning in 1990, it had to examine the constitutionality of such ‘typically’ paternalistic cases like euthanasia, drug consumption, tobacco advertising, compulsory vaccination or seat-belt regulations.570 My aim in this chapter is to analyse the most significant decisions related to paternalism, identify the ‘strategy’ of the Court in handling these cases and examine the arguments to see if there is a common ethical ap- proach that informs the Court’s decision-making. In my selection of cases, I focus mostly on classical ‘harm-preventing’ types of paternalism. It is also impor- tant to note that the Hungarian constitutional system has undergone significant changes since the writing of the main text of this book. As demonstrated by its preamble (the ‘National Avowal’), the newly adopted Fundamental Law of Hun- gary takes a more ‘value-saturated’ approach to many constitutional issues, the effect of which still an open question with respect to the Court’s jurisprudence on questions of paternalism.571 At first glance, the Court seems to adopt a deontology-based approach in most cases. When determining the justifiability of paternalism, the Court often 569 The decisions concerning sterilisation and registered partnership seem relevant from our perspective. The other...

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