Antal Szerletics

The Moral Foundations of Legal Paternalism.

PhD dissertation




I.                  The aims of the thesis

The overall aim of this thesis is to examine the conceptual and justificatory issues of paternalism both from a theoretical and practical perspective. My hypothesis is that traditional autonomy-based justifications fail to provide an adequate moral rule to regulate paternalism. I will attribute this failure to a number of different factors. I argue, among others, that (a) traditional justifications use essentially contested notions such as autonomy, voluntariness or consent; (b) tend to overemphasize autonomy and underemphasize other values; (c) attribute value to autonomy on a contingent basis (i.e. the value of autonomy is the consequence of modernity); (d) adopt the harm principle as a deontological principle; (e) reflect the underlying idea of state neutrality that can be subjected to extensive criticisms; (f) look for comprehensive and formal rules that are applicable in all paternalistic situations, while self-harming decisions are mostly based on subjective and incommensurable preferences.

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 behavior 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 “[…] the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others”, provides a clearcut rule in relation to paternalism: it plainly excludes paternalism from the sphere of legitimate state interventions.[1] Taking Mill seriously, paternalism would not be an overly interesting question, either from a legal or an ethical perspective, because the harm principle regulates the question in a comprehensive manner. How come then that paternalism still raises so many theoretical controversies and generates so much debate in public discourse?

Obviously, the harm principle is far from being an uncontested formula. It is an essentially liberal precept that has been subjected to numerous criticisms, mainly because its radical prohibition of paternalism seems untenable in modern societies. There are several cases when paternalism is not only unobjectionable, but expressly necessary. In principle, I agree with Feinberg that “[…] the [main] problem is to reconcile somehow our general repugnance for paternalism with the apparent necessity, or at least reasonableness, of some paternalistic regulations”.[2] There are a lot of competing justificatory theories of paternalism, and we may rightfully ask which one handles self-harming actions most “successfully”. The existence of these competing theories partly explains the controversial character of paternalism, especially when we take into account that the debates over paternalism are heavily laden with moral and political presuppositions. These often preclude the possibility of rational discussion. However, there is a deeper problem that contributes to the controversial nature of paternalism, independent of political orientation or personal moral convictions. It is related to any theory that strives to give a comprehensive rule for paternalism. In my opinion, paternalism is such a complex and delicate issue that it is impossible to devise one overarching principle that could adequately “govern” all of its dealings. 

II.              The method and relevance of the research

(II.1.) Paternalism has been a favorite “playground” of moral philosophers for the last forty years. It has generated an immense amount of literature and articles still keep popping up regularly until this day. Although Hart already touches on the issue of paternalism in Law, Liberty and Morality (1963), the beginning of the intense debate can be attributed to the publication of Joel Feinberg’s and Gerald Dworkin’s seminal papers in 1971 and 1972.[3] An important stage in the development of the doctrine was the appearance of Feinberg’s comprehensive book on paternalism published as part of his four-volume magnum opus, entitled The Moral Limits of the Criminal Law. The theoretical discourse continues with changing intensity. New scientific trends place the topic into new perspectives. For example, the recent idea of “libertarian paternalism”, using the methodology of behavioral economics, focuses on the question of preference formation and the application of non-coercive forms of paternalism. Newly emerging ethical theories, such as the ethics of care, demand the re-examination of previous justificatory models based on traditional ethical approaches. 

(II.2.) The protection from self-harming behavior is not only a persistent theoretical question but also a fact of life that emerges in new and complex forms with the increasing multicultural and pluralistic nature of modern societies. Paternalism often becomes the “battlefield” of conflicting worldviews. Technological advancement also creates new moral dilemmas with paternalistic implications (e.g. euthanasia). Consequently, paternalism is a highly relevant issue nowadays. A more personal reason for my research is the paternalistic attitude that permeates Hungarian politics and Hungarian society. The heritage of socialism persists until today, mainly in the form of extensive welfare regulations.

(II.3.) The approach of my thesis is predominantly theoretical. There is a huge variety of philosophical arguments and justificatory theories related to paternalism. One of my objectives is to try and “clean up the conceptual mess” that characterizes this field. My approach is “meta-theoretical” to a certain extent, in the sense that it is a discourse on paternalistic discourses: it presents, evaluates and critically reflects on different justificatory theories of paternalism. I primarily conceive paternalism as an ethical dilemma. Although it often becomes a legal issue in the form of paternalistic regulations and related cases, there are questions of paternalism that never enter the field of law. If the paternalistic actor is not the state (e.g. paternalism in private relations), law does not prescribe what is “the right thing to do” in self-harming cases. Additionally, it seems that paternalistic legal regulations and decisions are mostly backed up by ethical arguments and the outcome of those decisions depends on the balancing of these arguments. In the light of this, it is no surprise that paternalistic cases most often appear at the level of constitutional adjudication. Paternalistic intervention can be conceived as the collision of certain fundamental rights (e.g. the right to self-determination, the positive duty of the state to protect its citizens, etc.) but the balancing procedure often reflects ethical arguments. Despite the fact that there are established “tests” in the jurisprudence of high courts to resolve the collision of fundamental rights, I am convinced that decisions related to paternalism are largely determined by ethical arguments.

(II.4) There are three possibilities to justify an ethical dilemma such as paternalism.[4] (A) The top-down model follows the traditional syllogism-model of applying pre-existing rules in law.[5] It works by subsuming a particular case under a general norm (principle, rule, ideal, etc.). This deductivist model functions well in simple cases that can be brought directly and unambiguously under one specific moral principle. Unfortunately, paternalistic cases are not so easy to decide because the abstract rules regulating paternalism are indeterminate and there are often conflicting ethical principles that require careful balancing. Let us take a simple autonomy-based justificatory rule for paternalism; for example that “paternalistic interventions are justified as long as they do not violate the autonomy of the subject”. Two problems render the top-down model inoperable here. The first one is related to the abstract character of the rule (i.e. it does not specify the exact meaning of autonomy); the second problem is in the balancing of ethical principles (e.g. that the principle of benevolence can sometimes overrule autonomy). (B) The bottom-up strategy of justification is an inductivist method which claims that paradigmatic cases and particular judgments allow us to draw moral conclusions independently of general norms. This model is comparable to the precedent-system of the common law. In chapter 4, I advocate a contextual and case-based justification for paternalism. However, I would not absolutize the bottom-up or “casuistic” method. (C) Just as moral intuitions and moral principles, general rules and individual cases seem to mutually influence each other in a sort of “reflective equilibrium”. The way I use cases in the thesis will reflect this approach: I aim to show how moral intuitions and moral principles clash in hard cases of paternalism.

(II.5.) The method of my theoretical investigation is mainly analytical. The debate over paternalism is dominated by English and American authors and I will only take a short phenomenological “excursion” related to Heidegger’s philosophy. As it will become apparent from the beginning of the thesis, the negative connotations of paternalism are the results of modernity and the Age of Enlightenment. Thus, my thesis has a modern/postmodern dimension besides its ethical/political dimension. The analysis of cases is based on traditional black-letter legal analysis, with an “outlook” to the constitutional system of Hungary and to the established jurisprudence of the European Court of Human Rights. The scope of my research is limited to the examination of paternalistic moral dilemmas and their representation in the case-law of the Hungarian Constitutional Court and the European Court of Human Rights. I am not going to give a comprehensive empirical overview of paternalistic legal regulations, partly because it is irrelevant for my theoretical investigation, and also because it seems impossible to examine all laws and judicial decisions related to the issue. The notion of paternalism is extremely wide, especially when benefit-promoting forms are also taken into consideration. In a certain sense, all forms of welfare regulations and institutions, from public education to health insurance policies, can be considered as paternalistic interventions.

(II.6.) My work is particular and comprehensive at the same time. It is particular in the sense that it focuses only on one liberty-limiting principle and it is comprehensive because it tries to place paternalism into the wider context of ethics and political philosophy. To understand paternalism is to understand the underlying ethical and political theories. After the critical examination of these theories, I sketch the framework of an alternative approach inspired by the ethics of care and virtue ethics. I do not attempt to come up with a comprehensive theory, partly because I believe that such a theory is an impossibility and partly because of the limits of care in the public sphere. My aim is to provide guidelines that can sufficiently handle hard paternalistic cases on an ad hoc basis. Thus, the practical relevance of my thesis can be identified as providing a set of ethical arguments for legal practice.


III.           The overview and the results of the research

My thesis consists of four substantive chapters. These chapters can be divided into two groups. The theoretical investigations of the first three chapters (chapters 2, 3 and 4) make up the larger part of my work, while I discuss practical legal issues in the last chapter (chapter 5).

(III.1.) The second chapter deals with the definitional and justificatory questions of paternalism. Although it might seem easy at first sight to give an account of paternalism, there is a large variety of substantially different definitions in the philosophical literature. The analysis will show that almost all definitions make reference (1) to the violation of liberty and/or autonomy of the subject (which I will call the “element of interference”) and (2) to the prevention of self-harm (which I will term the “element of benevolence”). The element dominating the definitional discourse is the “element of interference”. I try to demonstrate how definitions gradually extend this element (from negative liberty in the direction of positive liberty and personal autonomy) to cover the most diverse forms of paternalism. Since almost any action can be interpreted as “interfering” with someone else’s autonomy (cf. the impossibility of completely self-regarding actions), the question emerges if “interference” is a necessary element of paternalism at all. I argue that one should be careful with overemphasizing this element and propose that it’s more enlightening to concentrate on the “benevolent motive” of the paternalistic actor. It seems that, on a rudimentary level, paternalism only implies benevolent motives. Following the question of definition, for the sake of conceptual clarity, I make distinctions with respect to the “external” and “internal” aspects of paternalism, separating the concept from other liberty-limiting principles (i.e. moralism, the harm principle and the offense principle) and identifying different subcategories within the concept.   

         The second part of chapter 2 critically presents the most commonly used justificatory models of paternalism. I distinguish between three basic approaches of justification, corresponding to the three main trends of normative ethics. I focus primarily on autonomy-based (deontological) justifications, because these are predominant in the discourse. I separate deontological theories in two groups: voluntariness- and consent-based justifications. The voluntariness-model will be presented through Joel Feinberg’s theory. I point out some weaknesses in his theory, especially connected to “evaluative” self-harming decisions. These decisions are fully voluntary but they might seem irrational or unreasonable for others because they represent unusual and essentially subjective preferences. Feinberg’s theory is unable to handle such decisions. Consent to paternalism might also be able to justify paternalistic interventions. I examine five types of consent: contemporaneous, prior, subsequent, anticipated and hypothetical. I draw attention to the imperfections of these approaches. My main argument is that consent often seems to hide other standards, such as rationality or voluntariness. 

(III.2.) The third chapter is an attempt to deconstruct the traditional autonomy-based approach to paternalism. Each of the four sections deals with a fundamental problem that questions the validity of deontology-based justifications. In the first section, I scrutinize the notion of autonomy. I argue that due to its complex character, it is not evident to determine if a specific paternalistic intervention violates autonomy or not. Personal autonomy is constituted by external and internal components that can be oppositely affected by different interventions. Paternalistic deception or manipulation, for example, interferes with the internal elements of autonomy (i.e. it affects mental presuppositions) while increasing the number of available options (i.e. the external components) at the same time. Moreover, the value attributed to autonomy is not universal. It seems contingent on social-historical circumstances, so theories that gear the justification of paternalism to the violation of autonomy necessarily become contingent as well. It is only in the modern age that people attribute a distinguished value to autonomy. With the failure of the “Enlightenment-project”, the “myth” of autonomy gradually dissolved. As emphasis shifts from the individual to the community, the approach to paternalism also changes from rejection to (limited) acceptance.

 The second section examines the problems associated with the harm principle of John Stuart Mill. This principle sets a blanket prohibition to legal paternalism and moralism which is justified through a utilitarian reasoning by Mill. However, there is an apparent tension between Mill’s commitment to utilitarianism and his categorical approach towards liberty. This tension is resolved by replacing the utilitarian justification of the harm principle with deontological ethics.  I will demonstrate that this “interpretational change” is already implicit in On Liberty and it becomes fulfilled in the theories of modern liberal authors (e.g. Joel Feinberg, Gerald Dworkin). Taking into account this interpretational shift, a strange paradox appears: while the absolute character of Mill’s prohibition is gradually abandoned through different methods of “softening” the harm principle, the utilitarian justification is replaced by a deontological background, which is more suitable for justifying categorical prohibitions.

The following section presents some “hard” cases of paternalism that challenge the validity of autonomy-based justifications in practice. These cases cannot be prohibited by the harm principle because they cause no harm to others. Neither can they be prohibited on soft paternalistic grounds since all self-harming decisions are based on perfectly voluntary choices. Still, our moral intuition tells us, even if we endorse liberal principles, that some of these self-harming actions are just “not right” and should be restricted (or at least, there is nothing wrong with restricting them). The cases I discuss are related to physical protection (e.g. crashhelmet and safetybelt regulations), dangerous substances (e.g. cigarette and alcohol consumption), active voluntary euthanasia and certain aspects of the protection of human dignity. I do not aim to give an exhaustive examination of all related cases or regulations. I neither claim that this section contains a conclusive argument against deontological paternalism. I would only like to present some “stubborn counterexamples” that raise doubts about the adequacy of autonomy-based theories.

The last section of chapter 3 “elevates” the discussion on paternalism to the level of political philosophy. Autonomy-based justifications of paternalism are strongly connected to the idea of state neutrality. This is not a coincidence, taking into account the common deontological background of the harm principle and liberal neutrality. The basic idea here is that citizens in modern pluralistic societies hold different views about what constitutes a good and valuable life for them. Thus, the state should be neutral towards the competing conceptions of the moral good and should not interfere with the autonomous choices of competent individuals. I will present the ideas of John Rawls and Ronald Dworkin related to paternalism and demonstrate how the separation between the “right” and the “good” is criticized by communitarian authors.

(III.3.) The fourth chapter presents “alternative approaches” to paternalism. These approaches are inspired by three ethical trends that have recently appeared (or re-appeared) on the theoretical palette, often associated with “postmodernism” or, in MacIntyre’s terminology, with the “failure of the Enlightenment Project”. I briefly present virtue ethics, perfectionism and the ethics of care and show that just as these theories bring along a new perspective compared to Kantianism and utilitarianism in general; they substantially change our approach towards paternalism as well. While not particularly convinced by perfectionism due to its elitist and authoritarian implications, I argue that virtue ethics and the ethics of care are capable of providing new, more practical (but less comprehensive) guidelines for the justification of paternalism than the traditional autonomy-based approach. I examine the connection between paternalism and the virtue of care. Even though paternalism is not a virtue in itself, it can be conceived as the “manifestation” of care. Approaching paternalism from this perspective removes the negative connotations that became attached to the concept during the Enlightenment-period and shifts the focus of attention from the principle of autonomy to the principle of benevolence. Consequently, the traditional hard-soft distinction of paternalism will appear as outdated in this context. Hard paternalism, if motivated by genuine care and empathy, seems to be justified because it can improve the character of both the paternalistic actor and the subject. I argue that it can also increase autonomy, especially if we reinterpret the notion of autonomy in a relational way. Care is an essential element of human relations and, presupposing that autonomy exists and develops within social relations, caring paternalism can hardly be conceived as a violation of personal autonomy. The ethics of care brings along a contextual and case-sensitive approach and advocates an “ad hoc” justification for paternalism. This corresponds to my critique of comprehensive ethical theories.

(III.4.) The fifth chapter contains an analysis of the jurisprudence of the Hungarian Constitutional Court and the European Court of Human Rights. Concerning Hungarian case-law, I examine “typical” harm-preventing forms of paternalism, including the regulation of drugs, euthanasia, medical sterilization or the compulsory vaccination of children. My aim is to explore the moral presuppositions that determine the Court’s approach related to self-harming cases. Despite the professed value-neutrality of the Court,[6] there is a suspicion that it handles paternalism in a “biased” way. The Court generally refrains from explicitly adopting positive moral values. However, deciding hard cases of paternalism necessarily implies taking sides in the moral debate, even if the decision is “wrapped up” in a neutral ideology. My analysis of the European Court’s jurisprudence focuses on the issue of “paternalistic moralism”. I include a short theoretical overview of legal moralism (i.e. the Hart-Devlin debate and its repercussions) to show that questions of moralism and paternalism are strongly connected and they often overlap. I examine moralistic restrictions related to the right of privacy (i.e. homosexuality and prostitution) and the right to freedom of expression (i.e. obscenity, pornography and blasphemy).

(III.5) The harm principle, from its very inception, represented the quest of modernity for a principle that is able to “govern absolutely the dealings of society with the individual in the way of compulsion or control”.[7] Mill argues that the absolute respect for freedom will always maximize social utility and individual well-being in the long run. It is quite obvious that this is not the case, thus, the utilitarian justification of the harm principle was gradually replaced by deontological ethics. I try and demonstrate that this interpretational change is already implicit in Mill’s theory. The second interpretational shift makes a move from deontology to perfectionism: it is Joseph Raz who reinterprets the harm principle in a perfectionist manner. Paralelly, and somewhat contrary to these developments (at least to the first interpretational change), a gradual “softening” of the principle takes place. The soft-paternalistic strategy of Feinberg aims to requalify hard paternalistic interventions as soft paternalism by showing that the self-harming action was not taken voluntarily. The introduction of the offense principle, as a legitimate liberty-limiting principle, facilitates the prohibition of non-harmful, but universally disliked, unpleasant or offensive behaviour (public nuisances, public immorality, etc.). Limiting the scope of the harm principle only to coercive interventions is also a possible method of “softening”. These efforts clearly demonstrate that it is illusory that a single principle can comprehensively regulate all dilemmas created by paternalism.

(III.6.) Since citizens in modern pluralistic societies hold different views about what constitutes a valuable life, it is a common liberal claim that the state should be neutral towards the competing conceptions of the moral good, while enforcing the “right” (i.e. the basic rules that keep society together). It seems to me that the key question is how to determine which acts belong to the sphere of the right and which to the sphere of the good. The common answer is that claims about the good are essentially controversial while the “principles of justice [the sphere of the right] are objective and interpersonally recognizable” and they extend only to constitutional essentials and to principles that regulate the basic structure of society.[8] The harm principle seems to belong to the realm of the “right” and reflects the “ideology” of liberal neutrality. Paternalism is excluded by the harm principle because there seems to be no overlapping consensus in most cases of paternalism. Instrumental forms of paternalism (e.g. seatbelts and other safety regulations, restrictions on smoking, consumer protection, etc.) do not reflect particular conceptions of the good, thus, they fall outside of the scope of the harm principle. As a consequence of their interconnectedness, criticisms directed against state neutrality necessarily affect the issue of paternalism. My aim is to present the main arguments that plausibly question the principle of liberal neutrality. If we accept these criticisms as valid, they give a “final blow” to the harm principle and force us to look for alternative justificatory theories.

(III.7.) The aims of my empirical research are twofold. Firstly, I would like to provide vivid examples of paternalism that demonstrate the frequent discrepancy between our moral intuitions and moral principles. Following the method of “reflective equilibrium”, it is not only moral principles that inform our moral intuitions, but moral intuitions also affect and sometimes contradict moral principles. The evaluative decisions in chapter 3.3 (e.g. active voluntary euthanasia in Pretty v UK, dwarf-tossing in Wackenheim v France, shooting-game prohibition in Omega, crash-helmet regulation in Chahal, smoking restrictions in Wöckel v Germany, etc.) are “hard nuts to crack” for autonomy-based theories, because, if the harm principle and the soft-hard distinction were taken seriously, the actions in these cases should not have been prohibited. They are based on perfectly voluntary choices and cause no harm to others. Still, our moral intuition tells us that some of these self-harming actions are just “not right” and should be restricted (or at least, there is nothing wrong with restricting them). These intuitions are reflected in the court rulings as well. Obviously, these “stubborn counterexamples” are not conclusive counterarguments, but they raise serious doubts about the adequacy of our traditional moral principles. The second aim of the empirical investigation is to explore what moral arguments and presuppositions determine court decisions and how the problem of paternalism is transformed to a legal question. The Hungarian constitutional jurisprudence reveals a value neutral approach. The principle of state neutrality, i.e. that the state has no right to impose particular moral standards on its citizens is reiterated in numerous cases.[9] Following Kantian inspiration, the Court attributes an inherent value to autonomy that is derived from the right to human dignity: “the right to human dignity means that the individual possesses a core of autonomy and self-determination beyond the reach of all others, whereby […] the human being remains a subject and cannot be transformed into an instrument or object”.[10] Correspondingly, the Court approaches paternalism from a deontological perspective. It emphasizes voluntariness as being decisive in paternalistic cases.[11] The capacity for voluntary choice seems to be determined on a sliding scale. Even though the age of general competence is fixed in the Civil Code, “it is primarily up to the legislator to decide whether it is justified to apply, […] an age limit different from that of general disposing capacity, and if yes, to what extent.”[12] Of course, autonomy-based arguments are complemented with consequentialist considerations (e.g. the possible social effects of permitting certain self-harming conducts, like drug consumption, voluntary sterilization, euthanasia, etc.). We may aptly characterize the Court’s approach to paternalism as a form of “deontology, spiced with consequentialism”. As for the “legal transformation” of paternalism, generally two constitutional requirements clash in the examined cases: the right to self-determination (an unenumerated right implicitly derived from the right to human dignity) and the State’s “institutional” duty to guarantee certain rights, for example, “the highest possible level of physical and mental health to everyone living in the territory of the Republic of Hungary”. The case law of the European Court of Human Rights is particularly rich when it comes to the protection of morals (“paternalistic moralism”), but there is no clear tendency in the jurisprudence. The Court sometimes upholds Member States’ moralistic regulations,[13] but sometimes rejects them.[14] Moralistic state regulations appear in the Convention’s framework mostly as interferences with the right to privacy (e.g. the issue of homosexuality) or the right to freedom of expression (e.g. obscenity and pornography). The margin of appreciation doctrine seems to give a wide discretion to Member States for moralistic interventions, especially in freedom of expression cases. The Court tries to refrain from perfectionism in cases where there is no “European uniform conception of morals”. But non-interference can represent a biased commitment here as well: it leaves perfectionism to Member States, but it is not sure that they are in a better position to assess positive morality than the Court. Reference to the “fuzziness” of morals seems to be a good excuse for the Court to hide behind the margin of appreciation doctrine. Although the protection of morals is explicitly mentioned as a legitimate aim in the limitation clauses of the European Convention, from a theoretical viewpoint, paternalistic moralism is not easy to justify.

(III.8) Caring paternalism prevails only in direct personal relations. It would be a mistake to “assume that justified forms of public paternalism exactly parallel those of personal paternalism”.[15] Law treats people under abstract descriptions and presupposes a certain degree of standardization. Nevertheless, care can find its way through the barrier of abstraction by the “infrastructure of care”. If benevolent paternalism is a manifestation of care and care is a virtue, then the state has a perfectionist task to develop the “infrastructure of care”, that is, the institutions, organizations, practices and shared beliefs by which a society nurtures mutual care among its members.[16] Consequently, the task of legal paternalism can be conceived as developing this “infrastructure” rather than directly coercing people to their “own” good. Since generalized paternalistic regulations are insensitive to the context in which paternalism takes place, it makes more sense to foster the virtue of care in people who, if the presupposition of virtue ethics is right, will find the appropriate way to respond to particular paternalistic dilemmas. Still, we must be very cautious with perfectionist paternalistic policies. From a critical perspective, if we conceive the state as an instrument of domination, legal paternalism that lacks the element of care is nothing else than a mask for exploitation. “The distant and impersonal relations of bureaucracies foster the opposite of sincerely cooperative [i.e. caring] paternalism, that is, conflictful paternalism – exploitative relations in the guise of paternalism.”[17] Thus, paternalism, (especially its benefit-promoting versions) can have an ideological role. Some commentators even conclude that “it is inherently dangerous to accept any form of state paternalism as truthful or legitimate”.[18] This is obviously an exaggeration, but it is true that oppressive state interventions can be disguised by benevolence, hence the distinguished value of autonomy and the negative connotations attached to paternalism in modern times. On the other hand, autonomy is also ideological to a certain extent: it represents Enlightenment’s false promise of independence that people can succeed and reach individual self-fulfillment without caring about each other (cf. the “myth” of autonomy in chapter 3.1.4). 

List of relevant publications

Paternalism and Euthanasia: the case of Diane Pretty before the European Court of Human Rights, in Diritto e Questioni Pubbliche: Rivista di Filosofia del Diritto e Cultura Giuridica, 10/2010. Eds. Giorgio Maniaci, Giorgio Pino, Aldo Schiavello. Palermo, Italy (2010).

Paternalism, Perfectionism and Liberal Neutrality in Humanitas Journal of European Studies, 3/2009, pp. 125-137.  Ed. A.H. Wentkowska. Sosnowiecz, Poland, 2009.

The Theoretical Aspects of Legal Moralism, in Silezian Journal of Legal Studies, 1/2009, pp. 98-111. Ed. dr. Barbara Mikolajczyk. Katowice, Poland, 2009.    

Perfectionism in the Pluralistic State - How to Reconcile the Principle of Liberal Neutrality with Legal Paternalism and Moralism?, in Jogelméleti Szemle, 3/2008. Eds. dr. Pokol Béla, dr. Karácsony András, dr. Szabó Béla, dr. Gyõrfi Tamás. Electronic journal available at

Defining Paternalism, in Jogelméleti Szemle, 4/2008. Eds. dr. Pokol Béla, dr. Karácsony András, dr. Szabó Béla, dr. Gyõrfi Tamás. Electronic journal available at

Liberty-limiting principles, with Special Attention to the Issue of Legal Paternalism and Moralism, in Collega 1-2/2009, pp. 97-102. Eds. dr. Máthé Gábor, dr. Vörös Imre, dr. Domokos Andrea, dr. Fábián Ferenc. Budapest, 2009.   

Coming to Terms with the Past: Reconciliation or Punishment for the Perpetrators of Past Crimes?, forthcoming article in the next volume of Series on Transitional Justice, Intersentia, Antwerp, 2010. General eds. Stephan Parmentier, Jeremy Sarkin, Elmar Weitekamp. 

Jogi paternalizmus, in Elpis Filozófiai Folyóirat, 2/2008 pp. 151-164. Eds. Galba Zsolt, Rosta Kosztasz. ELTE-BTK, Institute of Philosophy, Budapest, 2008.

Friedrich Nietzsche államról, jogról, politikáról, in Themis - Az ELTE ÁJK jogász PhD hallgatóinak tanulmányai, 2008 december. Eds. dr. Gönczöl Katalin, dr. Takács Péter, dr. Nagy Marianna. Electronic journal

Társadalmi igazságosság és a polgári törvénykönyv egyes rendelkezései, in Studia Collegii de Stephano Bibo Nominati - OTDK dolgozatok 2005, pp. 541-565. Ed. dr. Sántha Ágnes. ELTE Bibó István Szakkollégium, Budapest, 2006.



[1] John Stuart Mill, On Liberty, (1975) at 10.

[2] Joel Feinberg, The Moral Limits of the Criminal Law - Harm to Self, vol. 3 (1986c) at 111.

[3] These articles have been reprinted several times. For the original publications, see Joel Feinberg, Legal Paternalism, 1 Canadian Journal of Philosophy 105 (1971) and Gerald Dworkin, Paternalism, 56 The Monist 64 (1972).     

[4] Tom L. Beauchamp, James F. Childress, The Principles of Biomedical Ethics, (2009) at 195.

[5] Mark Van Hoecke, Law as Communication, (2002) at 172.

[6] László Sólyom, Az alkotmánybíráskodás kezdetei Magyarországon, (2001) at 689

[7] Mill (1975) at 10.

[8] Richard J. Arneson, Liberal Neutrality on the Good: An Autopsy, in Steven Wall, George Klosko (eds.), Perfectionism and Neutrality, (Lanham: Rowman & Littlefield, 2003) at 195, 206.


[9] Cf. 21/1996. (V.17.) AB.

[10] See, e.g. 39/2007. (VI. 20) AB.

[11] Cf. 521/1996. (V.17.) AB ; 4/2004. (XII. 13.) AB; 43/2005. (XI. 14) AB.

[12] 43/2005. (XI. 14) AB, section 4.1.

[13] Cf. Müller v Switzerland; Otto Preminger Institute v Austria; Laskey, Jaggard and Brown v UK.

[14] Cf. Dudgeon v UK.

[15] John Kultgen, Autonomy and Intervention – Parentalism in the Caring Life, (New York: Oxford University Press, 1995) at 161.

[16] Ibid. 30.

[17] Jack D. Douglas, Cooperative vs. Conflictful Paternalism, in Rolf Sartorius (ed.), Paternalism, (1983) at 197.

[18] Ibid. 198.