CYIL vol. 12 (2021)

CYIL 12 (2021) THE PANDEMIC AND THE LAW: CHALLENGES OF COVID-19 TO THE ETHICAL … is the so-called principlism, an ethical approach based on four equal principles of medicine: respect for autonomy, nonmaleficence, beneficence, and justice. 7 Nevertheless, many practical dilemmas seem to need an even more fundamental basis for the identification of values that should navigate the solution. Perhaps the most influential basic moral theory in contemporary ethics is utilitarianism 8 (even though it may be better applicable to public policy decisions than to everyday clinical practice). 9 Utilitarianism 10 is one of the various approaches based on consequentialism, which is the view that normative properties (“goodness” or “wrongness”) on actions depend only on their consequences. 11 Actions are therefore not morally good or wrong in their own but based on whether they bring about more benefits than harm. An opposite approach to consequentialism, the so-called deontological ethics, understands moral goodness or wrongness as inherent properties of actions regardless of their consequences or context. 12 Even if we subscribe to the utilitarian view, we still need to define what is the benefit we want to achieve. It needs to be noted that there are many versions of utilitarianism, each coming with a somewhat different answer. Since it is not possible here to analyse more of them, we will focus on classical utilitarianism. Under this approach, good are those actions that bring the greatest amount of happiness to the greatest number of persons . 13 Everyone’s happiness (understood as any pleasant experience) is equal, i.e., one should not prefer their own happiness over the happiness of people they do not even know. A different question is whether various types of pleasures are qualitatively different. In classical utilitarianism, there has been an important discussion on this matter with John Stuart Mill’s insistence that there are higher and lower pleasures. For the sake of clarity, we will take Jeremy Bentham’s view that all pleasures are equal and can only be compared by their quantity. 14 2. Utilitarianism in International Law Utilitarianism has been widely criticised as a philosophical basis for law. For example, some authors believe that consequentialism can only be a weak foundation for the law of any kind, since rights need to be respected regardless of their contribution to the global utility. 15 Therefore, we may ask whether it is even suitable to analyse the role of utilitarianism in legal regulation. 7 See BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013. 8 See for example ŠOLC, Martin. Právo, etika a kmenové buňky [Law, Ethics, and Stem Cells]. Wolters Kluwer, Praha 2018, p. 40. 9 See BEAUCHAMP, Tom L., CHILDRESS, James F. Principles of Biomedical Ethics. 7 th ed. Oxford University Press, Oxford 2013, p. 352. 10 For an introduction to utilitarianism in the context of medical ethics, see ibid., pp. 354–361. 11 See Consequentialism. Stanford Encyclopedia of Philosophy. (3 June 2019.) accessed 23 June 2021. 12 See Deontological Ethics. Stanford Encyclopedia of Philosophy. (30 October 2020.) accessed 23 June 2021. 13 See The History of Utilitarianism. Stanford Encyclopedia of Philosophy. (22 September 2014.) accessed 23 June 2021. 14 See ibid. 15 See HELD, Virginia. Morality, care, and international law. Ethics & Global Politics. (2011, Vol. 4, No. 3), p. 180. doi: https://doi.org/10.3402/egp.v4i3.8405.

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