Legal Issues in the COVID-19 Pandemic

The legal issues arising from the COVID-19 outbreak are mostly unexperienced, with several fields of law involved—from human rights to market regulation—all with consequences that need to be further scrutinized. In their chapters, Aldo Schiavello and Guido Smorto investigate two, complementary, legal questions connected with the current pandemic. In his contribution on “Rights, balancing and certainty,” Aldo Schiavello analyzes the legal measures taken by Italian public authorities to contrast the virus, by focusing on indeterminacy as one of the main characteristics of the law in contemporary constitutional States. According to the author, the ways in which the legislator, at different levels, faces the COVID-19 current pandemic offer an interesting perspective to analyze the positive and negative effects produced by the indeterminacy of contemporary law. In doing this, the chapter ponders on the challenges to the objectualist conceptions of law that reduce law to a system of norms or a set of facts, and on those conceptions that regard the law as an interpretative social practice. Legal systems’ constitutionalization, as the chapter argues, increases legal flexibility at the expense of legal certainty, and it imposes to legislators, judges and individuals the responsibility and the associated risks of individuating the law. In the second article of the section titled “The right to health and resource allocation. Who gets what and why in the COVID-19 pandemic,” Guido Smorto reflects on the right to health and resource allocation during the pandemic. As the COVID-19 outbreak has led to a worldwide, substantial increase in the demand for resources that are essential to deliver health care—pharmaceuticals, hospital beds, ventilators, medical supplies—the article scrutinizes the rationales for prioritization of these resources in times of severe shortage, such as during a global pandemic. When needs suddenly exceed demand worldwide, resources may quickly become scarce in relation to potential demand, so that strict rationing is the only viable response. Against this backdrop, the paper scrutinizes the rationales for prioritization of scarce resources, with a special focus on the COVID-19 vaccine, and it questions the actual role and reach of the market with regard to resources that are essential to deliver health care, especially in times of severe shortage, such as during a global pandemic.