L’analisi economica del diritto ci ha insegnato che tutti i diritti hanno costi. La soddisfazione di un diritto può facilmente entrare in conflitto con quella di un altro e la necessità di compiere scelte tra diritti incompatibili è diffusissima.

La pandemia provocata dal Covid-19, là dove pone la società di fronte a scelte rese tragiche dall’impossibilità di assicurare soddisfazione ad alcuni diritti fondamentali e di riconciliare legittime ma incompatibili pretese, offre un drammatico esempio di questi conflitti.

Questo lavoro sottolinea l’importanza del contesto in cui la scelta si pone, e del modo in cui ci troviamo ad affrontarla. La stessa scelta può essere più tragica in una situazione e meno in un’altra.

La disuguaglianza sociale è uno dei fattori principali. In un mondo di profonde disuguaglianze i conflitti non coinvolgono tanto i valori, quanto gli interessi contrapposti di differenti gruppi sociali. Il differente impatto che le scelte hanno sui più poveri, sui vulnerabili e sugli emarginati contribuisce ad esacerbare i problemi e a rendere la situazione complessiva più tragica.

Sommario/Summary:

1. All rights have costs. - 2. Tragic choices in Covid times. - 3. The context of the choice: conflicts of values and conflicts of interests. - 4. Why do we have to face this? - 5. Conclusion: how to make tragic choices less tragic. - NOTE

1. All rights have costs.

The Covid-19 pandemic is forcing society to make tragic choices. Conflicting yet equally legitimate claims cannot be reconciled, such as survival and freedom of movement or the pursuit of an economic activity [1]. During pandemic peaks, basic rights, such as the right not to be left to die, cannot be guaranteed to everyone. This comes as no surprise for scholars who have studied the cultural implications of decades of dominance (sometimes creeping, sometimes explicit) of the economic analysis of law, which is the hard-core philosophy of neo-liberal legal thought. The economic analysis showed that all rights have costs and that the fulfilment of some rights can easily conflict with that of others [2]. Enforcing rights always implies a certain use of material resources and involves costs that someone has to bear [3]. Besides, the recognition of rights always implies the imposition of duties that can be very unwelcome [4] (as in the case of freedom of speech, which sometimes imposes the duty to endure hate speech or fake news). The foregoing reminds us that societies often lack the material and social resources to guarantee acceptable levels of protection even of fundamental rights. Scarcity makes painful choices necessary. Some of them are even tragic [5]. The point I wish to discuss in this paper is that both the context of a choice and the way we came to make it matter. Albeit obvious, this point is often ignored by law and economics scholars, who tend to focus on specific cases without adequately considering the context in which they occur and the factors shaping them. The same choice can be more tragic in one situation and less so in another.

2. Tragic choices in Covid times.

What characterizes the tragic choices that Covid is forcing society to make? A first aspect has to do with the peculiarities of the right to health, meant not as the right to be kept healthy, but as the right to have access to the most adequate treatments available [6]. While the costs that must be borne for the fulfilment of other fundamental rights (to food, protection, education, etc.) are usually limited (in a certain sense even physically), the right to be treated entails costs that could tend to infinity if the extremely costly therapies produced by research guided mostly by patent incentives [7], were applied to the entire population [8]. In addition, while for many rights a partial fulfilment may be sufficient, the right to be treated often knows no “sufficiency” for the simple fact that any solution that accepts death when it is technically avoidable is not perceived as sufficient. Many people would be content if a certain level of education were guaranteed to all, but not as many would be satisfied if healthcare were universally provided only for diseases up to a certain threshold of severity, while for the others everyone had to fend for themselves. From another viewpoint, the pandemic brings to light conflicts over the assignment of fundamental rights that are endemic, and usually concealed in various ways. Many of the problems compounded by Covid have the same nature as problems arising almost daily. A continuous “tragic choice” is made by the public health system, which is unable to ensure the required amount or timeliness of medical tests and treatments even in non-pandemic times. In a worldwide perspective, the fact that people who technically could be saved are left to die is very frequent and, from a moral point of view, it seems to me that there is no reason to worry only when it becomes evident that this could affect our fellow citizens and ourselves. This point must be emphasized not to add to the emotionality of the problem, but to analyze it rationally. In medical terms, this problem is ubiquitous because every resource invested in research rather than in immediate treatment sacrifices current lives to save future ones, and every resource invested in the pursuit of certain goals (reducing infant mortality) instead of others (reducing health inequalities), saves some lives and not others. The fact that in these examples the sacrifice does not concern present and identified people, but [...]

3. The context of the choice: conflicts of values and conflicts of interests.

Having established that tragic choices are inevitable because they originate from the finitude of human existence, it is perhaps appropriate to divert attention from the most rhetorically desperate formulations of the conflict and to look for a more rational framing of the problem. A first noteworthy point is that presenting the problem in terms of conflict of values [10] is misleading. Most tragic choices do not entail an abstract conflict between values, but a concrete conflict between people with different interests. The type of conflict that most often arises is not comparable to the “intra-personal” conflict in which one or a homogeneous group of individuals must choose whether to give up profitable or pleasant activities (e.g. going to theaters or museums in times of pandemic) that can put their health at risk. Nor is it comparable to the conflicts that sometimes arise when all citizens have similar opportunities to be involved (e.g. in criminal proceedings a conflict may arise between protecting the victim and ensuring the accused the right to a complete defense). Conflicts of values can be one-person conflicts or two- (or more) party conflicts [11]. A conflict of values generating from the need to balance claims based on opposing rights is radically different from a one-person conflict. It involves different subjects who bear different interests and preferences that cannot be satisfied separately. The clash of the interests involved determines the intensity and the features of the conflict of values. At present we face situations in which “a possible … state of affairs valued by a person or group is incompatible with one that is valued by another” [12]. The value of freedom does not conflict with an abstract aspiration for health supposedly common to all human beings, but with the aspirations of people who, for personal reasons, consider the defense of health a priority, and cannot achieve their goal unless the freedom of others – in addition to their own – is limited. Perhaps decades of dominance of utilitarian attitudes (such as those underlying the economic analysis of law) have accustomed many people to not taking the separateness of persons seriously – as the utilitarian philosophy does in Rawls’s [13] reproach. If separateness of persons is taken seriously, one soon discovers that most of the conflicts created by the pandemic are not between abstract [...]

4. Why do we have to face this?

Another aspect that law and economics scholars tend to overlook concerns the events from which the situation imposing the tragic choice originates. Sometimes the need to make tragic choices is the result of circumstances largely beyond human control. In many cases, however, the choice is wholly or partly the result of previous human choices and of how society is organized as a whole. As Martha Nussbaum reminds us in various works [15], Hegel had already pointed out that in the face of tragic situations it is important to ask ourselves: why do we have to face this situation, and what institutional and political change can contribute to ensuring that we do not face it again? She comments: “Sometimes a tragic choice is caused by brute necessity; but more often the causes lie squarely on the human side, where stupidity, obtuseness, and malice are amply to be found” [16]. Answering the questions posed by Hegel does not eliminate the need to make the choice but it still is a very important step. The first question (how did we get here?) matters because we are talking about choices that involve suffering, and how we got to a situation that generates suffering is not irrelevant either to those who suffer directly or to those who are forced to witness suffering they cannot alleviate. Suffering due to causes that are, and are perceived as, consequences of an incontestable fate is different from suffering perceived as the consequence of someone else’s selfishness or greed. The reasons that led to the tragic situation matter. Let’s take the example of intensive care beds. Allocating resources to critical care to an extent beyond the demands of normal times has an obvious cost. In exceptional situations this can lead to a scarcity that no reasonable policy can prevent. A situation where scarcity depends on a policy that, for example, preferred investing in basic medicine (thus saving the lives of many) is very different from a situation where scarcity depends on a philosophy whereby efficiency consists in obtusely following the law of supply and demand. A philosophy according to which intensive care beds are to be arranged, fast and expensively, only when a demand exists and enough people are ready to pay for them (an arrangement which, by the way, is often hardly feasible, given the impossibility to train the needed personnel in a short time). This example confirms that Hegel’s questions are important because they run [...]

5. Conclusion: how to make tragic choices less tragic.

Having established that some tragic choices can be prevented, or at least numerically reduced, and that at times we can try to avoid the coincidence of tragic choices and other specific injustices, it is certainly very difficult to imagine a society not forced to take a large number of decisions fraught with potentially tragic consequences. The foregoing reflections do not indicate solutions to this problem and probably no substantial criterion to tackle all tragic choices can be shared by every reasonable person [17]. Wide margins of dissent, and therefore of conflict, will always remain. However, a final observation can be made concerning, once again, the social context in which the need for choices arises. A context characterized by deep-rooted individualism will end up exasperating the conflicts behind any choice. A context in which a sense of reasonableness and solidarity dominates, where people who have to endure the worst do not feel that this happens because somebody has taken advantage of their weakness, can help bear events perceived as inevitable. In this perspective, decisions must be judged not only by the relationship between the costs and benefits they generate but, above all, by the way they distribute them. If we assume that the people who have not been economically affected by the pandemic containment measures (or even benefited from them) should keep what they have while the state provides for the others, every choice becomes highly dramatic, given that the state is not, as some seem to think, an abstract entity with a bag full of money which can always be asked for more. If we had made clear from the beginning that sacrifices must be equally shared (if necessary, even by means of a special tax with rebalancing purposes), we would have created a completely different context to frame the inevitable disagreements. If we share the fundamental assumption that the costs of whatever happens (a long and extensive lockdown or a short and less extensive one) must be shared equally, the perspective changes radically, and a possibly calm discussion on the reasons in favor of one or the other option can replace the clash between incompatible interests. A clash of interests which, as recently witnessed, easily leads to a senseless opposition between those who constantly ask for more (more lockdown, more money, more freedom, etc.), those who defend their privileges to endure, more or less calmly, every alternative, and those who claim [...]

NOTE