In spite of the prudential hesitations of the central government, the hypothesis of "containment" of the so-called "unvaccinated" is coming forward: not only as an atypical "health" response to the increase in the number of infections, but also, and above all, as an appropriate "internal" reconciliation in terms of balancing the universally recognized constitutional principles and the fundamental rights of people who, for various reasons, find themselves involved, positively and / or negatively, by any provision . Notwithstanding, of course, that the potential right of the so-called "unvaccinated" not to be subjected to unshared health treatments is countered by the right of the so-called "vaccinated" not to have to suffer limitations of any kind in the sphere of their daily life. possibly needed by the exponential increase in the contagion curve determined by the free and indiscriminate circulation of the former.
If this, therefore, is the human context of reference, and if on a purely legal level "the Republic", in the mind of the now inflated Article 32 of the Constitution, "protects health" as a "fundamental right of the individual and interest of the community ", Then, and all things considered, it can only be spontaneous to ask which of the two interests at stake deserves a higher level of protection: the individual one understood as a private interest referable to a small circle of individuals (and then it would be more correct to speak in terms gruesome of a privilege), or the collective socially considered in its reflection so to speak "external"?
The answer cannot but be univocal on the logical level even before the juridical one, since the possible hypothesis of a targeted "containment" referring only and exclusively to the "unvaccinated" is configured as a constitutionally appreciable and legitimate measure only when it is finalistically oriented to ensure the protection of the health not only of the subject who is subjected to it in spite of himself, but also of the entire community, since the Internal System intends to guarantee, and indeed guarantees, with all due respect to the sterile serial protesters, the health both of the individual as a "cives", and of the individual as a "singulu", the rights of which the latter, in his being "single", can only succumb when it is a question of guaranteeing the best interest of the community. After all, if you think about it, these are the two sides of the same coin. Look at it "by right" or look at it "in reverse", the result does not change except on the level of the different visual angle of reference which, in allowing a variegated point of observation, does not allow anything other than to reach compliant conclusions although supported by somehow contrasting reasoning.
First of all, because, even to want to concede everything, and as noted by many, it is undeniable that the health of the individual as a "single" constitutes the necessary prerequisite of the primary interest of the same in the social context of strict relevance. Therefore, because, in the specific circumstance, the prescription of certain behaviors and / or the imposition of as many prohibitions, even aimed at a minimum restricted circle of individuals, can only be in line with the main regulatory provisions in force in the matter in question, as oriented , those behaviors and those prohibitions, to limit the pandemic prejudice. Finally, because the golden rule of law teaches that each individual can and must be subjected to only those limitations that are suitable for guaranteeing respect for the rights and freedoms of others. What must be avoided in order not to incur dialectical distortions of any kind is the desire to indulge, at any cost, the dynamics of the "contrast" between individual interest and collective interest, since both are united and guaranteed by the superior guiding principle of social solidarity also of constitutional significance. Where, therefore, the configuration of the argumentative boundaries is clear, the prescription of the targeted "containment", proposed and requested by some provident Governors of the Center-Right of the North, can only be legitimate as it is justified by higher health needs and as in any way prejudicial to the health of the recipient of the measure.
Let's understand each other better: the possible determination in this sense by the legislator, and even before the political decision-maker, cannot be subject to censorship due to lack of reasonableness, since the sacrifice imposed at the level of the self-determination of the individual allows and guarantees the full explanation of every another "good" of constitutional significance. Moreover, the determination not to get vaccinated is the result of a very personal conviction which, even if protected in the proper sense, cannot reverberate to the detriment of the community when, by contrast, the equal right of the generality of the associates, i.e. of those who have assumed the determination against vaccination by deliberately choosing to be in line with the recommendations of the Government Bodies. All the more so when claiming to be able to act in the exercise of a right, that of not undergoing vaccination so to speak, could not at all exclude a potential compensation reflex when that behavior arises as an efficient cause of harmful events that derive from any thirdly, since, and likewise, the existence of rights alone cannot be claimed, but the correlative permanence of duties and related responsibilities must also be accepted in the event of their non-observance. If this were not the case, it would not even be possible to talk in terms of "community". In the light of these reflections, then, who would be the children of a minor right? The "vaccinated", for having undergone a health measure of an allegedly "dictatorial" character (forgive the bitter irony that is evidently used for argumentative purposes only), or the "unvaccinated" for being misunderstood and revolutionary bearers of a claim self-reported and self-oriented freedom of convenience? I believe that having to answer such a question is already only a fruitless exercise in style: the time has come, for the political decision-maker, to abandon once and for all the "carrot politics" to take "strong" decisions with authority. social, because a government that does not decide only to try to maintain an unspecified political balance between party forces, or a better guaranteed balance on the social level, is only a false government: Dante Alighieri already spoke of Italy as a "ship without a helmsman in a great storm, not a woman from the provinces, but a brothel ”. And that "brothel", on different levels, unfortunately continues to this day.
Giuseppina Di Salvatore
(Lawyer - Nuoro)