CYIL vol. 12 (2021)

CYIL 12 (2021) THE PANDEMIC AND THE LAW: CHALLENGES OF COVID-19 TO THE ETHICAL … In practice, the prevalence of utilitarianism with strong deontological limitations can explain many pandemic norms. Health resources might be allocated where they will save most lives, which is a utilitarian rule. However, there is usually established the prohibition of discrimination based solely on age, which prevents the providers of health services from “sacrificing” the elderly to save most life years possible. In a similar way, some resources might be reserved for palliative care which is required under any conditions to alleviate the suffering and preserve the human dignity of those who cannot be admitted to intensive care. These considerations are deontological. Arguments based on deontology can also be used for the rejection of herd immunity achieved by the unlimited exposure of society to the virus, even though the humanitarian and economic price of such a policy would probably be so high that it would not be permissible even under utilitarianism. It might seem counterintuitive, but the regulation of lockdowns tends to be even more utilitarian than resource allocation. It is possible that the preference to protect the most vulnerable may sometimes overcome utilitarian calculus but at the same time, it is true that these vulnerable groups are most likely to suffer the most serious consequences of the epidemic by far. Even if the vulnerable are outnumbered by the younger and healthy with less (but still existing) risk of dying or suffering long-term consequences of Covid-19, the utilitarian approach might still prefer saving the lives of the former over preserving part of life enjoyment and income of the latter. 4. Changing times, changing rules The combination of utilitarianism and deontology might also remind us of another fact: what matters the most in critical situations is not the immutability of particular rules but the consistency of their underlying principles. The rules might actually lead to dramatically different consequences in different circumstances. As a result, the values and aims which a rule strives to fulfil may change if the rule is not changed itself. For example, the utilitarian approach with its value of social benefit may be used to justify a high level of freedom under normal conditions when its risks do not outweigh the life enjoyment it brings. However, in a crisis such as a dangerous epidemic (or any other natural disaster, war, etc.), social benefits might be higher if freedom is more limited. If we understand freedom not only in its negative dimension (such as freedom from active interference) but also as a positive concept (freedom to something), we might even argue that lockdowns and other restrictions in effect extend the sum of freedom in the society since they preserve all possible freedom of those whose lives were saved. If a person dies, they arguably lose all of their life opportunities and, therefore, they lose their freedom to do or to perceive any pleasant things life offers. If a person’s life is saved, they retain the freedom to utilitarian. However, some are potentially reflecting more clearly and carefully about the costs and benefits of different courses of action and policy. The fundamental difficulty facing all of us during this pandemic is that we cannot know for certain which action will be best overall. We do not know what a utilitarian ‘archangel’ would choose: it would require a detailed understanding of the science and facts, the nature of well‐being and an exhaustive understanding of the consequences of our choices. But that is what we should be aspiring to. We must strive to get the facts straight on all the consequences of our choices. Our societies may then choose to embrace or choose not to embrace the utilitarian course. But at least we will then do so with a clear understanding of our values and the price we are willing to pay for them. ” SAVULESCU, Julian, PERSSON, Ingmar, WILKINSON, Dominic. Utilitarianism and the pandemic. Bioethics. (2020, Vol. 34, No. 6), pp. 630–631. doi: https://doi.org/10.1111/bioe.12771.

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