CYIL vol. 12 (2021)

martin šolc

CYIL 12 (2021)

Introduction The Covid-19 pandemic brought about a lot of issues not only in medicine and public health but also in law, ethics, psychology, sociology, and a number of other fields. The allocation of scarce health resources, public perception of science and compliance with official recommendations, psychological impacts of the pandemic, and many other questions will hopefully be subjected to intensive research in the years to come. Some of the pandemic- related problems are analysed in this section of the Czech Yearbook of Public and Private International Law . We focus on the case law in times of Covid-19 2 as well as on professional guidelines regarding health care rationing. 3 In this paper, we strive to answer a more fundamental question. What is the ethical- philosophical background of political and legal decisions in the pandemic? Are the leading theories of medical ethics still navigating our societies’ policies, or did the crisis change the ethical paradigm? This question might seem purely academic. After all, various ethical theories often lead to the same practical norms. However, sometimes they might significantly differ in their consequences. Furthermore, even when two theories establish the same rule, important disagreements may arise when it is necessary to specify the rule or to balance it against other rules. 4 For developing policies, specification is crucial as it entails narrowing the scope of a broader rule and generalising it to similar circumstances. 5 For example, we may have a rule that “the lives of vulnerable persons must be protected”. The utilitarian specification might be: “the lives of vulnerable persons must be protected unless such protection brings about so much harm to others that it lowers the overall utility in the society”. On the other hand, the deontological specification would limit the rule by some other categorical rule so the result could be along these lines: “the lives of vulnerable persons must be protected unless it actively causes the death of another” or similar. These differences may have serious consequences in practice. It is, therefore, important to be aware of values, principles, and ethical theories which underlie legal regulation. 1. Utilitarianism and medical ethics In our postmodern times, a pervasive scepticism towards the possibility to discover objective truth has led to a high degree of pluralism. 6 This applies to many areas of human endeavour including medical ethics and, to a certain degree, health law. It is not possible to identify a consensually accepted ethical basis for value judgments in health care. Nevertheless, we may find theories and approaches which are among the most influential. Very popular 2 See HOLČAPEK, Tomáš. Judicial Oversight in Times of a Pandemic. In this issue of the Czech Yearbook of Public and Private International Law, 2021 . 3 See ŠUSTEK, Petr. Czech Expert Statements on Patient Prioritisation in the Covid-19 Pandemic in International Comparison. In this issue of the Czech Yearbook of Public and Private International Law, 2021. 4 See BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 384. 5 See ibid., p. 20. 6 See for example BARÁNY, Eduard. Pojmy dobrého práva [Terms of Good Law]. Bratislava, Eurokódex 2007, p. 109. See also ŠOLC, Martin. Limity zástupného informovaného souhlasu ve zdravotnictví: hledání nejlepšího zájmu v postmoderním světě [The Limits to Surrogate Informed Consent in Health Care: Finding the Best Interests in the Postmodern World]. In SEDLÁČEK, Miroslav, STŘELEČEK, Tomáš (eds.). Zastoupení. Specifika a kontext. [Representation. Specifics and Context.] Wolters Kluwer, Praha 2020, p. 186.


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