When: Tuesday, March 28, 2023, 12:30 PM - 2:00 PMWhere: Room 313, Third Floor, School of Law Queen Mary University of London Mile End Road London E1 4NS
This talk is jointly presented by Professor Kai Möller, London School of Economics and Prof Yossi Nehushtan, Keele University
Proportionality is the test used by courts in the liberal-democratic world to determine the justifiability and legitimacy of repressive state measures. This chapter considers whether the lockdowns imposed in the context of the Covid-19 pandemic were proportionate and thus legally and morally justifiable. It points out three pathologies of the political and public discourse around lockdowns, all of which relate to the final stage of the test, which examines the appropriateness of the balance struck between the severity of the restriction on freedom and the public interest in protecting health and lives. First, by focusing in a one-sided way on the protection of life, the public and political discourse neglected the question of the severity of the restriction on freedom and, relatedly, the costs of lockdowns, in particular their social, medical, psychological, cultural, and economic costs. Second, by de facto placing a taboo on the question of the relevance of the age distribution of the people dying from Covid-19, a proper consideration of this relevant factor was prevented. Third, the considerations that were regarded as determinative in striking the balance between protecting life and guaranteeing freedom, namely the protection of the health services from being overburdened and/or giving preference to human life as the highest value, were normatively unconvincing. Because of the complexity of, in particular, the empirical questions, this chapter cannot reach a confident conclusion as to the proportionality of the recent lockdowns. It does, however, show that the public and political discourse was biased in favour of lockdowns and offers a doctrinal structure as well as normative reflection on how to conduct the proportionality assessment properly.
Kai Möller joined the LSE in 2009. He previously taught at Lincoln College, University of Oxford as a Junior Research Fellow and a Lecturer in Jurisprudence and has held a visiting professorship at the University of São Paulo. He holds M.Jur., M.Phil. and D.Phil. degrees from the University of Oxford, a PhD in law from the University of Freiburg, and is qualified for the German bar. His work in human and constitutional rights law and theory attempts to specify the moral, legal, constitutional, and institutional implications of a commitment to human dignity, freedom, and equality.
In deciding its response to Covid, the UK government has made a policy decision to sacrifice both the short-term and long-term well-being of young people in the UK – in order to shortly prolong the life of the elderly. The UK’s policy regarding the pandemic has discriminated against younger generations by imposing blanket regional and national lockdowns and strict social distancing rules on the entire population, regardless of whether certain age-groups were likely to be affected by Covid – and while ignoring the completely different impact that the policy had on different age-groups’ current and future well-being.
While blanket lockdowns and strict social distancing rules discriminated against younger generations, isolating only the elderly and vulnerable was both necessary and not discriminatory. Such a policy complies with the moral duties that are imposed by the concept of intergenerational justice and can also be justified behind a Rawlsian ‘veil of ignorance’. Isolating the elderly and the vulnerable should have been, however, advisory rather than compulsory.
Professor Yossi Nehushtan holds degrees from Striks Law School (LLB), the Hebrew University (LLM) and Oxford University (BCL, MPhil, DPhil).
Yossi is Professor of Law and Philosophy in Keele University, and the Founder and General Editor of the Keele Law Review.
His areas of research are legal and political theory, public law, human rights, and law and religion.
Yossi has provided legal advice and counselling to various bodies, including human rights NGOs in Israel, and the UN Human Rights Committee.