CYIL vol. 12 (2021)

CYIL 12 (2021) THE PANDEMIC AND THE LAW: CHALLENGES OF COVID-19 TO THE ETHICAL … 3. Utilitarianism as the Foundation for Covid-19 Measures? At the first sight, Covid-19 mitigation measures seem to have been navigated by utilitarian ethics. After all, many countries adopted relatively strict lockdowns and limited personal liberties in order to save as many lives as possible. The utilitarian principle of maximizing benefits has been cited as an important ethical justification for such measures while some authors have even considered it the most important ethical value for times of pandemic. 18 Perhaps most visibly, maximisation of benefits has been (usually implicitly) included in many guidelines on pandemic intensive care rationing. 19 On the other hand, it is feasible to frame the containment policies in another way. An argument may be made for understanding them as predominantly deontological. 3.1 The Triumph of Deontology? Due to the complexity of epidemiological measures and the lack of relevant data, precise predictions of their consequences have not been possible. While certain predictions have been made, 20 the future economic, political, and societal impact of said measures will probably not be known sooner than (at least) several years after their closure. Therefore, it has been impossible to precisely weigh the risks and benefits of particular policy decisions. While the utilitarian calculus always entails some level of uncertainty and arbitrariness, it is questionable whether the scope of the unknown regarding the containment measures even allowed for true utilitarian reasoning. In a situation where we cannot reliably predict the consequences of our actions, we cannot fully apply the consequentialist approach. On the contrary, we need to either take a strictly deontological position (and do what we deem right no matter the possible consequences) or to combine the two approaches in a way that allows for a high level of uncertainty regarding the predictable outcomes. We might even come to the conclusion that pandemic policies have been largely deontological. At least at the beginning of the pandemic, the debates on economic impacts which usually accompany any political decision-making seemingly vanished. The imperative to save human lives, especially those of the most vulnerable members of society, might have seemed to overrule all other considerations. 3.2 The fall of ethics? If this was true, we would have seen a great shift in the ethical paradigm. But the situation would be even more serious. If such a paradigmatic change was not a result of scholarly discussion but rather forced by an unpredicted crisis, can we even trust medical ethics with its ability to inform policy decisions and legal practice? It would probably mean that the predominantly utilitarian medical ethics which developed during the previous decades were only suitable for the peaceful times of abundance of resources; or perhaps, that modern medical ethics was in large part nothing but an illusion. 18 See for example EMANUEL, Ezekiel J., PERSAD, Govind, UPSHUR, Ross, THOME, Beatriz, PARKER, Michael, GLICKMAN, Aaron, ZHANG, Cathy, BOYLE, Connor, SMITH, Maxwell, PHILLIPS, James P. Fair Allocation of Scarce Medical Resources in the Time of Covid-19. The New England Journal of Medicine. (2020, Vol. 382, No. 21), pp. 2049–2055. doi: https://doi.org/10.1056/NEJMsb2005114. 19 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. 20 See for example OECD Economic Outlook, May 2021. No Ordinary Recovery. Navigating the Transition. OECD Economic Outlook. (2021, Vol. 1.) accessed 27 July 2021.

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