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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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3. Autonomy-based approaches


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3.  Autonomy-based approaches

3.1  Autonomy and paternalism

Chapter 2.1 demonstrated the great diversity of definitions of paternalism. While many definitions emphasize the violation of the subject’s autonomy, it can be asserted that paternalism in a wider sense does not necessarily involve interference with autonomy. If it was only a matter of definition, an examination of the concept of autonomy would hardly be necessary. However, it was shown in chapter 2.2 that autonomy also has a crucial role in the justification of paternalism. Some key questions naturally arise at this point. Who qualifies as an autonomous person? Is there a universal standard of autonomy or is it contingent on external factors (e.g. social circumstances, historical development)? What gives the prioritized value of autonomy when assessing the question of paternalism? Can autonomy, as a single concept, serve as the ‘final arbiter’ with respect to the justification of paternalism or do we need to consider other factors as well (e.g. consequences, paternalistic motives, conflicting values, etc.)?

In order to answer these questions, a deeper understanding of the concept of autonomy is needed. Autonomy is a complex notion that has been extensively researched both from a practical and a theoretical perspective. Its complexity can be partly attributed to the fact that it is embedded in a sociohistorical context and any examination of the concept shall take into account its distinctly modern origins. As John Christman explains, “[…] putting moral weight on an individual’s ability to...

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