Abstract
In addition to the distinction between primary and secondary principles, there is also an important distinction between inclusionary principles and exclusionary principles. Inclusionary principles state conditions under which uses of coercive law cannot be found in violation of the principle of respect for persons merely in virtue of being coercive; thus, they indicate what uses of law may be included in the sphere of acceptable uses. These are contrasted with exclusionary principles, which state conditions under which uses of law are in violation of the principle of respect for persons and thus are to be excluded. The principles of harm, paternalism, welfare, and community are all primary inclusionary principles, while the principle of necessary means is a secondary inclusionary principle. Primary inclusionary principles are at the heart of a theory of the proper uses of law, and, accordingly, most of the present work is devoted to them. However, exclusionary principles also play a vital role in the overall evaluation of legislation. There is a primary exclusionary principle, viz, that any coercive use of law is in violation of the principle of respect for persons if it is not authorized under inclusionary principles. There are also secondary exclusionary principles, and they qualify the application of inclusionary principles by excluding some uses of law that would be permitted were only inclusionary principles used. The use of secondary exclusionary principles may be illustrated through an examination of the issue of free speech.
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© 1983 D. Reidel Publishing Company, Dordrecht, Holland
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Hodson, J.D. (1983). Exclusionary Principles. In: The Ethics of Legal Coercion. Philosophical Studies Series in Philosophy, vol 26. Springer, Dordrecht. https://doi.org/10.1007/978-94-009-7257-5_8
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DOI: https://doi.org/10.1007/978-94-009-7257-5_8
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-277-1843-3
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