Rationing, Balancing and Cost-Benefit-Analysis in Social Law

Abstract

This paper deals with the challenges of rationing of existential goods due to scarcity and conflicting interests (at the latest in the question of costs). The legal-political example pursued in this paper is rationing in the health care system, i. e. in curative and partly also in preventive measures. In each case - and in everyday life and by no means only in extreme corona pandemic situations - it is a question of whether there are absolute, ponder-proof claims to certain goods. Ultimately, this is to be denied, even if rationing, especially in Germany, is usually concealed behind vague concepts such as the medical necessity and economic efficiency of treatment. But the public authorities cannot escape the weighing process - even if its consequences are often fatal in industrial society. In particular, misunderstandings of human dignity as well as skewed accusations of utilitarianism and a misleading pseudo-controversy between deontology and consequentialism have for a long time obscured the fact that in liberal democracies a balancing of different aspects of freedom and freedom preconditions is inevitable. Due to parliamentary reservations, however, this weighing must not be outsourced to administrative committees. Caution is called for in all of this with the economic cost-benefit analysis, which is hardly tenable in its foundations, with egalitarian approaches, and with the traditional but unfounded idea that fundamental rights are primarily (or exclusively) protected in single situations and are not relevant in the case of mass concern. Based on the latter point, it can also be shown that the previous tendency is not convincing to judge areas such as curative health treatment, preventive corona hazard control and fine dust or climate policy as being completely different from each other in terms of fundamental rights.