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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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6. Conclusion


217 6. Conclusion 6.1 At the intersection of two conflicting principles 6.1.1 Autonomy “If a man does not keep pace with his companions, perhaps it is because he hears a different drummer. Let him step to the music which he hears, however measured or far away.”769 Throughout this book, the problem of paternalism emerges as the tension of two fundamental principles: autonomy and benevolence. Autonomy appears as a central notion of paternalism both from a definitional and a justificatory aspect. Most definitions consider interference with autonomy as an essential character- istic of paternalistic regulations. They term the ‘element of interference’ in differ- ent ways which seems to cause some conceptual uncertainty as to what exactly qualifies as paternalism. Autonomy-based justificatory theories seem to be rather one-sided. The dis- tinction between hard and soft paternalism, for example, focuses solely on the voluntary character of self-harming decisions. However, it is not always easy to establish the voluntariness of a decision. At first glance, it is tempting to equate voluntariness with rationality. Some forms of self-harming behaviour seem so irrational that most of us would deny that they were taken voluntarily. There are people who jump off 400 meter high buildings with small parachutes. Oth- ers find pleasure in drinking and smoking excessively, while knowing that these harmful passions considerably decrease life expectancy. It is possible to claim that these choices are irrational and therefore paternalistic intervention is justi- fied in such cases. However, there are seemingly unreasonable decisions that are delivered...

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