Antigone V Antigen

Natural law/Positive law aspects applied to the Covid 19 vaccinations argument

Whereas many years have elapsed since I studied and later taught Jurisprudence to students, the ongoing argument triggered by the moral dilemma surrounding the vaccinations, highlighted these past days by President Macron, threatening to “emmerder” the life (“make life hell”) of French “vaccine rebels” and Novak Djokovic (amusingly now nicknamed NO-VACCS) who won on appeal an entry visa to Australia, despite not being vaccinated, has reminded me of this innate conflict between “Morality and Law”.

This argument runs much deeper of course, because it actually aligns two conflicting moral positions; the freedom and autonomy each person has over his being, not being coerced to induce chemicals in to his veins against his will in this case, as opposed to the right of the public/ persons not to be infected or jeopardized by individuals who knowingly present a risk to them.

The vast majority of scientists, based on their research have held that the vaccines are very effective in protecting the public against the evasive Coronavirus, its variants and strains and statistics of Covid victims and seriously ill patients support these findings. Nevertheless, a vocal minority is objecting to having to vaccinate, for various reasons, based on various beliefs. Whether we agree or disagree with them, for the purpose of this discussion, is immaterial.

The question is whether the Sovereign, can force that minority to vaccinate, whether by imposing orders upon those individuals or indirectly by making life impossible for them? This is not a question of opposing moral principles, which is a valid question in itself, rather, a question as to whether man made (Positive) law should prevail over laws derived from Nature or from moral (Natural) law which a person may consider deriving from a divine “higher authority”? This is in essence the dilemma faced by Antigone, as skillfully portrayed by Sophocles in the year 441 BC.

Thus, Antigone while recognizing that she was breaking the law of land which forbade the burial of her brother who died on the battle field, felt that her act of bringing her brother to burial, was justified as she believed that there is a higher authority over and above the law of land which is moral. In this Greek Tragedy, after the death of Odeipus, his successor King Creon believed in the theory of man made laws. Antigone had a firm belief that Gods have authorised people to give a respectful burial. And thus, following God’s wish/command which has priority than following the man-made rules.

In considering this conflict, most of us will probably take a view of balancing the conflicting “rights” (majority vs. minority) and “duties” (State to protect the people or those of persons/parents refusing to inject themselves and their children with chemicals) and take a view based on their belief in science, the State’s responsibility etc. Indeed, the Sovereign itself recognizes this dilemma and does not force persons to vaccinate if they don’t wish to do so, rather they impose restrictions (“sanctions”?) on those who refuse to do so, so not to jeopardize the majority. Clearly, the State has a responsibility towards its citizens, to protect them (their health and wellbeing), to keep order and avoid chaos and ensure sustainability, yet it recognizes the rights of individuals with respects to their own person and with respect to their children of which they are patrons/guardians. It is therefore recognized that these rights are absolute and cannot be compromised as such, however can be de facto curtailed and limited so not to compromise the rights of other persons, to be free of risk and threatened by infection.

Interestingly, this balance act is evidenced both in democracies and in totalitarian states, recognizing that a person’s innate right over his being is fundamental, albeit that policy driven considerations will sway the balancing act significantly as to the degree of restrictions/sanctions imposed by the State on “non-conforming individuals”.

Len Judes

10 January, 2022