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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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1. Introduction


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1.  Introduction

A strange form of entertainment appeared among the French youth in the beginning of the 1990s. Local discotheques started to organize ‘dwarf tossing’ events, in which a dwarf, wearing suitable protective gear, would allow himself to be thrown short distances onto an air bed by the clients. French authorities soon prohibited these events, on the basis that the practice violated the principle of human dignity. In a series of appeals, the case was brought before the French Conseil d’Etat and the UN Human Rights Committee.1 The applicant, Mr. Wackenheim, one of dwarf employees in question, claimed that banning him from his work had an adverse effect on his life and represented an affront to his dignity, since human dignity consists in having a job. Although his petition was rejected by both forums, Mr. Wackenheim’s reasoning is also understandable to a certain degree. The case raises an interesting question for legal theorists. What are the acceptable limits of state intervention to protect competent individuals from their own self-harming conduct? Put it more directly, what are the rules and limits of legal paternalism?

Beginning with the age of the Enlightenment, paternalism came increasingly to the forefront of philosophical attention. Ever since this period, the dilemma of regulating self-harming behaviour has occupied the mind of many moral and legal philosophers. For the past two centuries, the discourse has been dominated by the harm principle of John Stuart Mill. The principle, when stating that...

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