Ante‐factum legislative general vaccination mandates as a solution to legal hypocrisy in pandemics

Abstract

With the next pandemic likely not far off, the debate over the suitability of a broad, general vaccination mandate (GVM) goes on. This essay proposes a novel argument in favor of GVM—one based on the reality that left to its own devices, executive power, from governments to the local administration and even corporations, tends anyway to impose on the nonvaccinated restrictions of such harshness that vaccination becomes de facto mandatory. The most coercive measure was banning the nonvaccinated from the workplace, which was done—despite the fundamental importance of the right to work to the human being—without any genuine examination of the elements of balancing (necessity, proportionality) required whenever a right is limited by the authorities. Mandating vaccination de jure, by parliaments, before the next pandemic strikes would have the merits of avoiding legal hypocrisy and would be achieved following national public debate and a thorough process of balancing the rights at stake.