Péter Takács:

Reader’s Report on Antal Szerletics’ dissertation,

entitled „The Moral Foundations of Legal Paternalism” (2010)

submitted to University of Gent (Belgium) and University of ELTE (Budapest, Hungary) in the framework of a jointly supervised PhD (co-tutelle) project

Object of this review is a scholarly elaborated paper, consists of 237 pages, entitled as mentioned above. It is organized in table of contents, preface, introduction (pp. 1–10), four substantial chapters (pp. 11–205), ‘conclusion’ (pp. 206–214), bibliography of aprox. 220 titles (pp. 215–228) and an index of cases in different jurisdictions (pp. 228–231). Substantial chapters deal with definitional and justificatory questions of paternalism (ch. 2), a ‘deconstruction’ of its deontological approach, touching on problems of liberal neutrality (ch. 3), and its philosophical background in different moral theories, namely virtue ethics, perfectionism, and ethics of care (ch.4). One of the main chapters analyses different cases concerning paternalism and legal moralism in two jurisdictions (ch. 5). Number of footnotes is 787.

The subject matter of the paper, namely ‘paternalism’ or ‘looking for the proper scope and justification of paternalism’ – triggering off lively problems and raising deep philosophical, moral and legal questions during the past four or five decades – is not only a legitimate, but undoubtedly a timely object of research. From a historical perspective it is a modern and up-to-date topic embedded in a long tradition of moral and legal philosophy with centuries-old background principles, time-honored theoretical (and ideological) patterns and ‘good old’ solutions.

The first virtue of the dissertation is that its author has managed to find a balance between a modern phenomenon and the old traditions of its possible analytical framework. The most important of these traditions seems to be that of “legal moralism” of Anglo-American jurisprudence in the 20^th century (centering around the famous Hart-Devlin debate), which, in part, leads us back to the debate initiated by J. S. Mill during the 19^th century. Since the main theses of liberal political philosophy were continuously challenged, in this context, basically by conservatives (J. F. Stephen, Lord Devlin, other), the author of a dissertation on paternalism has to face the need of treating (not to say recycling) an intellectual tradition of two centuries. In my view, Antal Szerletics did it well and laudably.

By the detailed analysis he contradicted, though, one of his statements (“paternalism has been a favourite ‘playground’ of moral philosophers …”). This statement proved to be an exaggeration: after reading this thesis it might be evident that in many respect paternalism was not a “playground”, but rather a “battle-field” for principle-driven moral philosophies and theory-obsessed scholars looking for a “single right answer” in all cases.

Secondly, I think that the author has also managed to develop a good balance between moral philosophy (in which field he seems to feel himself more comfortable, and on which he seemingly dwells on with greater pleasure) and legal theory. Looking for, as the title suggests, the moral foundation of a legal phenomenon he examines thoroughly the case law in two jurisdictions, namely that of the Hungarian Constitutional Court and European Court of Human Rights (and by passing in some others). The evaluation of the practice and argumentation of the Hungarian Constitutional Court is, in my view, legally correct and theoretically well-founded; assessments of decisions of European Court of Human Rights are instructive and informative. I agree with the statement that in spite of the professed value-neutrality of the Hungarian Constitutional Court, it handled paternalism in a “biased” way. Even though deciding hard cases of paternalism necessarily implies taking sides in the moral debate, the Hungarian Court generally refrained from explicitly adopting positive moral values.

I have found it praiseworthy that that the author throws a glance at the political consequences of paternalism; mainly in those cases in which it is customary to do so in the literature, viz. those concerning the problems of liberal conception on neutrality of the state. I could not find, however, any reason for failing to do so in case of his preferred solution to the problem, viz. being silent about the political and institutional consequences of justified paternalism on the basis of the ethics of care, supposedly different of a neutral state. If it has any reason at all, it might be that theorizing paternalism on the basis of ethics of care, is just a newly ‘acquired taste’ in the realm of theories.

Mr. Szerletics examines the problems basically and almost exclusively by analytical method, occasionally alluding historical connections, and sometimes being indicative of the historical development of ethical and philosophical ideas. In my view, the analytical method is legitimate, appropriate, and productive. After all, this is the dominant way in the literature concerned. So in this way he is able to be very much in line with the mainstream of the literature in the dissertation. I think, all reader will acknowledge and appreciate the huge volume of the used, interpreted, applied and criticized literature, listed at the end of the dissertation. Incidentally, the style of the text is clear, the way of wording is smart and unbiased, reflecting a due measure of detachment that might be required in case of a scholarly paper.

In many points the author summarizes long debates and gives comprehensive, almost encyclopedic overviews of one or other phases of these debates.  Educated primarily as a lawyer, I was impressed by these general overviews of ethical theories of centuries, including the development of the last two or three decades as well.  I was impressed, too, by the basically tentative manner of finding solution for paternalistic dilemmas in the field of  moral theory, which found its way, finally, to a determined and definite position.

The structure of dissertation is  the product of a careful and long-matured consideration. Maybe some sections could be relocated (e.g. theoretical questions of legal moralism, c.f.  5. 2. 1, from the chapter dealing with the practical cases of courts could be moved to chapter 3 or to a new one), these minor possible changes however does not affect the main lines of the picture. The firm structure suggests that the author’s main concern is centering basically around justification. In my reading of the paper, justificatory problems, in fact, spread over chapter 2.2., in which it is indicated in the title, and they fill considerable space in chapter three. This question, however, is only a matter of numbering, not a substantial one.

As far as the main statements of the paper are concerned, I agree with many of them. I refer here only to some of these.

For example, the author demonstrated that the harm- and offense-principles are not incontestable formulas, and if they could prohibit paternalism in all cases, it would go against our moral intuition. This intuition, namely that some form of moral sense tells us, even if we endorse liberal principles, that in certain cases self-harming actions (not to mention those harming consenting others) are not right and should be restricted. In this way, the dissertation struggles with the problem and contradiction stated by Joel Feinberg. That is to say it is centred around the need to reconcile the general repugnance for paternalism with the apparent necessity, or at least reasonableness, of some paternalistic regulations. Since one side of this contradiction (namely the general repugnance, and the prohibition of paternalistic action) was well grounded during the past centuries, no wonder, that an author with a general overview of the question seems to dwell on on the other side, namely on the justification of paternalism.  By this I mean that if paternalism is such a complex and delicate issue, as the author states, and it is impossible to devise one overarching, “single right” principle that could prohibit it, it will turn out to be impossible to find a justification for the opposite. No principle could adequately “govern” all problems of it.

After the critical examination of the traditional theories, the author of the paper has delineated a framework of an alternative approach. It was inspired by the ethics of care and, partly, virtue ethics. We are told that it does not aim a comprehensive theory, partly because the author believes that such a theory is impossible, and partly because it is confined basically to the private sphere. More precisely, there are limits of this approach in the public sphere. I personally would be sceptical about the possibility of the dividing line between these two spheres, exactly in the case of paternalism. To which one could we connect, for example, problems of usurious lending?  If usurious lending, I mention by passing, belongs to the scope of paternalism, as the author seems to accept, it is painfully underestimated in the paper.

The author states that virtue ethics and the ethics of care are capable of providing  new guidelines (and, practically, a set of ethical arguments for legal practice) for the justification of paternalism and handle paternalistic cases on an ad hoc basis. He hopes that ethics of care brings about a contextual and case-sensitive approach, since comprehensive ethical theories do not work well. He strives for thinking of paternalism as the “manifestation of care”, and try to remove the negative connotations that became attached to the concept earlier. In many ways the basic tone of the dissertation is a hope in the fruitful theoretical framework and its force. In my view for this approach it would be important to elaborate how to make distinctions between the private and public spheres, and what kind of institutional settings are involved when ethics of care is applied in this field.

In spite of these minor reservations and misgivings, I think that the dissertation is of a high standard quality, and excellent regarding the main concepts, structure, analysis, new approaches and argumentation.

General evaluation. Considering the above mentioned merits and the high quality of the paper, and the theoretical achievements of the author, I recommend for the examination board to accept this dissertation as satisfying all the requirements of a standard PhD thesis. I recommend, too, that the examination board do give admission for Mr. Antal Szerletics to the second part of the exam.