CYIL vol. 13 (2022)

MARTIN ŠOLC CYIL 13 ȍ2022Ȏ and the health of those who would otherwise contract preventable diseases) arguably justifies the obligation. Or, at least, is capable of justifying it. However, utilitarianism as an ethical approach used for solving the collisions of interests may easily be contested. It may be all too nonchalant in sacrificing minorities for the sake of the many. That is not exactly what liberal democracies tend to accept easily. Modern medical ethics is to a great extent based on the protection of the individual. After all, the basic interpretation principle of the Convention on Human Rights and Biomedicine 31 is the primacy of the human being, i.e., the maxim that “[t]he interests and welfare of the human being shall prevail over the sole interest of society or science” (Article 2). This does not mean that the rights of the individual cannot be restricted in order to protect the rights and legitimate interests of others. If for nothing else, the legitimate aims of such restrictions – public safety, public health, prevention of crime, and the protection of rights and freedoms of others (see Article 26 of the same convention) – exceed the “sole interests” of society. It can be concluded, though, that any limitation of the individual’s interests should be considered very carefully and performed in the least restrictive way possible. If utilitarianism does not seem to be a reliable navigating tool for the dilemmas related to compulsory vaccination, we might look into the realm closer to traditional legal thinking. The endeavour to understand any legal norm ultimately leads to the same question: what is the aim of law, and how does it relate to different interpretations of this norm? The postmodern society we live in is characterised by the plurality of systems of beliefs and values. Since it is practically impossible to identify a particular way of life that would be consensually accepted in the society as the best, it is arguably not feasible to understand law as a tool to ensure such a “good life”. Nevertheless, any legal system is deeply connected with a society it exists in. When the society breaks into chaos or undergoes a profound change, the law is shattered too. And, at the same time, if the legal system stops working, society falls apart. In the absence of a unifying idea of the good life and universally shared values, we believe it is the survival of society that should be seen as the ultimate aim of law. In other words, the law must support social cohesion. Such a conclusion may seem a little cynical, but it can be based on, at least, three arguments (which admittedly differ in the levels of generality and persuasiveness): – the supportive role of social cohesion is, by definition, a crucial feature of any legal system regardless its cultural, geographical, or historical context; no matter whether we look at very complex legal systems of great civilisations or the set of norms governing the lives of ancient tribes, the law that does not support social cohesion does not survive; – by preventing chaos, the strengthening of social cohesion protects the lives of people as well as their pursuit of happiness (even though it might contribute to the persistence of structural injustice in a particular society); and – in postmodern liberal democracies, social cohesion enables people including the minorities to live in peace and exercise fundamental rights. If we accept that the law should support social cohesion, what does it say about the legitimacy of compulsory vaccinations? This question might be answered on two levels. 31 According to the Explanatory Report to the Convention on Human Rights and Biomedicine, point 22.

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