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Epidemiology and Law
(EpiLaw)
Project description
In response to the current pandemic, the Centre for Social Sciences Institute for Legal Studies has launched a new research project. Funded by the National Research, Development and Innovation Office and in affiliation with the ongoing The Responsiveness of the Hungarian Legal System 2010-2018 (FK129018) project, it is entitled Epidemiology and Law.
Two things have already become clear regarding the ongoing coronavirus epidemic. First, the pandemic’s social consequences are just as significant as its medical effects. Second, until effective vaccinations or cures are found, besides symptomatic treatment and preventive medical steps, the most important steps taken have been the norms, regulations, incentives and the measures on behalf of the authorities. These, on their part, raise questions that are best answered by law. Some epidemiological measures have a history of many centuries, yet it is worth examining how far, under the changed conditions of international transport and the spreading of news, those are still effective and in what cases they achieve an adverse effect.
The measures taken by the authorities may not only surpass usual legal boundaries, but can also significantly deviate from the logic of the different branches of law and the standard methods of influencing human behaviour. In the given circumstances, legal sanctions can affect people without wrongful behaviour, be that intentional or negligent. To cite a few examples. Quarantine is a strict legal restriction, which applies typically without the persons being responsible for the situation. Meanwhile, if they cannot compensate for their resulting loss of income, it is still not in their interest to report the circumstances that led to the quarantine. Wearing masks is both costly and uncomfortable and mostly serves to protect others from infection and is therefore against individual interests. Several cases directly contrast with the majority’s sense of justice, including the free vaccination or testing of those responsible for their vulnerability or the free screening of those not paying social security.
The question is whether these new life situations are best regulated through traditional or new legal means. Since 1 September 2018, the Institute for Legal Studies has been working on a research project entitled The Responsiveness of the Hungarian Legal System 2010-2018, funded by the National Research, Development and Innovation Office. One of the research hypotheses of that project, based on an interdisciplinary understanding of the concept of resilience and Jean Piaget’s model of adaptation, is that either law assimilates the new life situation to its existing dogmatic and institutional system or the system accommodates and adapts to the new life situations and creates new legal institutions. The new research project offers an opportunity to put our already formulated predictions to a test.
Several already existing legal institutions can be seen as suitable for managing the pandemic-induced situation. For example, one could promote using the instruments of criminal investigation for contact trancing. The clausula rebus sic stantibus principle could be invoked in certain cases that involve contracts that have become unfeasible. The enforceability of claims could be extended following the regulations on terms of limitation. In certain cases, we can invoke the rules of threat of public endangerment from the Penal code.. Entering or leaving the country could be made dependent on citizenship. The pandemic also creates a significant challenge with respect to medical administration, the basic liberties of the European Union, or even human rights.
The effectiveness of the limitations and incentives needs to be re-examined in every new context of application. Does the state, besides installing regulations, guarantee reasonable compensation of damages to promote cooperation from the affected people? In certain cases, the given legal system might not be equipped with the right legal institutions, such as the activité partielle/chômage technique institution in French, and Kurzarbeit in German law that can be applied in cases of temporary setback of production.
Within the thematic structure of the project on the responsiveness of the legal system, this research has led to questions such as the private and labour law applicability of the clausula rebus sic stantibus principle during the epidemic. That legal institution is the result of former crisis legislation and it makes exemption from the binding force of contractual obligations possible if conditions should alter significantly. In times of an epidemic hindrance of claims and prescription (adverse possession) become problematic. Questions related to damages, compensation or reparation, together with their ability to act as incentives, would be rewarding research areas, and so would be the imbalances between performance and consideration, the acts of employers in response to reduced capacities, mandatory closures, or school closures; the changed regulations on foreign missions, working abroad, workplace health regulations or the new, extraordinary work law related governmental directives, etc.
With respect to the regulation of markets and competition, changes in the structure of financial support from the state, the market distorting qualities of epidemiological measures, as well as the regulatory attempts to minimise the distortion, and the area of media regulation. Our experts in administrative law will review the classical institutions of health and infectious disease regulation, together with sanctions and procedures under administrative law. The constitutional law research team will analyse emergency legislation and its constitutional guarantees and legal limitations, they will also focus on relevant questions related to data protection.
With respect to criminal law, research into the sanctioning of infection appears necessary, including cases of bodily injury, with special regard to the relative likelihoods of different outcomes (e.g. by comparing the relevant flu and corona virus statistics), imputability (in light of the information available on the virus), and causality (comparing theories of causality in epidemiology, private law and criminal law). Definitions of “false alarm” and the legal frameworks of broadcasting scientific information need to be investigated as well. The research project emphasises the examination of processual issues, together with questions involving the criminal nature of rule infringement in times of epidemic, or the connections between the old and new definition of rule infringement.
Regarding research into equality, attention could be directed at the exposure and special public health situation of minorities, and also at potential discrimination in public services in this instance.
Potential areas of inquiry within the fields of EU law and international law include the scientific evaluation of the limitations on the four basic EU liberties, legal questions related to the closing of the borders, the application of the ordre public principle, and the legal aspects of the present and future of European epidemiological regulation, the upholding or suspension of international law and international private law obligations, or certain questions regarding epidemiological and human rights issues in case of armed conflict.
Finally, the methodology research team will look at theoretical questions related to causality in epidemiology and law, models of probability as well as their legal relevance, questions related to causal attribution and procedural law. They analyse the channelling of expert views into legal actions and the levels of certainty that law can build upon. The legality of certain professional protocols can also be called into question, the changing views on justice in law and their effect on epidemiological efficiency. The legal history of epidemiology is also a significant area, together with the use of artificial intelligence or the connections between legal consequences and results, or the rule of law indexes and epidemiological indicators.
In the first phase of the research we will examine the current law, using analytical and dogmatic in both historical and comparative methodologies and, because of the time constrains, will publish the results on the JTI blog and as MTA Law Working Papers. The long-term plan of the Institute is to apply the most recent quantitative and qualitative empirical methods, as well as mathematical and network models and to examine the efficacy and legal limitations of the regulations against epidemiological predictions. The research is intended to contribute to the ongoing shared discussion in many institutions and on many fora about the new and challenging legal questions and useable methodologies in the current situation.