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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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4. Alternative approaches


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4.  Alternative approaches

4.1  The emergence of virtue ethics

The previous chapters demonstrated some of the problems that deontology and consequentialism have to face when it comes to the justification of paternalism. These ethical theories have been criticized on a more general level as well. MacIntyre asserts that disagreements over central moral issues cannot be settled in the present social and cultural order.453 Modern ethical theories, rooted in what MacIntyre calls the ‘Enlightenment project’, sought to replace the religious foundations of morality with secular principles that any rational person could accept, irrespective of his or her personal beliefs.454 However, these theories are often unable to resolve moral dilemmas because their allegedly rational action-guiding principles are “mutually antagonistic” and ‘protagonists’ of rival theories tend to “invoke incommensurable forms of moral assertions against each other”.455 These ethical systems seem to hide an ‘emotivist’ approach to morality, meaning that people’s approach to central moral debates (such as the value of human life, e.g. abortion or euthanasia) is only seemingly rational and moral choices, in fact, are personal, non-rational choices that are merely “expressions of attitude and feeling”.456

The inability of deontology and consequentialism to resolve moral dilemmas triggered two responses.457 Some ‘anti-theorists’, like Bernard Williams, criticized the idea that an impersonal ‘morality system’ grounded in universally applicable principles can prescribe moral obligations that are always consistent with each other. Williams argues that conflicts of moral obligations are not merely apparent and...

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