[Alexander Somek] Thursday, April 2, 2020
1.
The measures imposed by the Austrian government to protect public health encroach deeply on our fundamental rights. Freedom of association has been all but abolished. For many people, there is no longer any freedom to engage in economic activity. Most businesses have to remain closed.
Yet there is scarcely any protest. We Austrians believe the measures to be reasonable, especially when looking across the border to Italy or Spain. It is clear to us that no political decision-maker could ever shoulder the responsibility for not saving hundreds or even thousands of lives and causing the health system to collapse owing to the failure to adopt precautionary measures. In a democratic society, all lives matter equally. It would be wrong to be complacent about the fact that the virus only accelerates the natural process by which the old and weak are eliminated from the population. Before the Second World War, people might have thought like that. Fortunately, this is no longer the case today.
So, everything is good. What the government does is reasonable. We just have to clench our teeth and wait until it is over.
But the reasonableness is hard to digest. We are not fully reconciled with it. I, at any rate, sense that we are not. There is something bizarre about making a whole population wear masks and regulating the distance of human interaction.
But what is it that might explain our uneasiness with what can conceivably pass as rational and perhaps even necessary government action?
2.
The basic principle of a liberal society was articulated by the British philosopher John Stuart Mill in the form of the “harm principle”. According to this principle, the political community, acting through the state, is only authorized to intervene in the freedom of individuals in order to protect others from harm. We are allowed to knock the pistol out of the assassin’s hand and to revoke the license of a notoriously reckless driver. More must not be done. Above all, society has to abstain from protecting people against harming themselves.
This principle can only function as a safeguard of freedom, if its application observes a narrow causal nexus (i.e., identifies a “proximate cause”) and if self-harm is not taken to imply harm to others. Those who use heroin arguably ruin their lives. The harm principle would not protect individual freedom if it could be invoked to prevent individual drug use on the ground that it might tempt others to explore the effect of such substances themselves. Anyone making sexist jokes must not be prohibited from doing so by suggesting that he or she is contributing to a culture in which women are systematically disadvantaged or victims of violence. The person may, of course, be forbidden to discriminate against women or to engage in violent acts, but merely contributing to a climate of opinion or to the propagation of ideas is too remote and opaque in relation to concrete acts of harm carried out by other people who may have favorably responded to these ideas. According to Mill, the publication of writings in which people are disparaged must be permitted. Only the violent execution of the relevant awful ideas may and must be prevented.
The examples chosen indicate that liberalism is not a nice doctrine. It is not the creed of those who want society to be one large comfort zone in which nobody has to encounter irritating ideas or practices. A liberal society is jarring and shrill.
Liberalism has understood, however, that our freedom depends on the difference between the proximate and the remote or merely conceivable causes. This difference must be sustained, because otherwise everything that might be potentially harmful could be banned, especially any criticism of the government, which after all weakens state authority and could thus plunge us all into chaos.
3.
It may seem that Mill’s principle would have clear implications for the Corona crisis. The state should only intervene when there is a clear causal nexus between the actions of one person and the contraction of the disease by another. This means that individuals who are aware of their infection should be prohibited from transmitting the virus to others unless theses others for some reason would allow this to happen or voluntarily incur the risk. The principle therefore authorizes protection against acts such as deliberate spitting, which have actually happened in Austria. On the other hand, those who do not and cannot know that they are infected should not be held responsible for spreading the virus. Persons must be free to decide for themselves how to deal with uncertainty. A liberal society relies on individual responsibility. Sweden is an example of this, and the United Kingdom also wanted to set such an example before the Prime Minister was confronted with quite daunting consequences for the NHS. In the end, such a society will most probably end up with more deaths than others that take extensive precautionary measures, but the deaths could not be attributed to anyone as wrong: “As between two innocents, let the damage lie where it falls.”
4.
And, yet, the Corona crisis suspends the principle of liberalism. The act of infection cannot be subject to observation and policing. We cannot single out the proximate cause because we cannot perceive when and how the “drops” of spittle jump over from one person to another. Causation can only be made visible indirectly by correlating aggregated numbers. We get hold of the cause by means of establishing quantified relations between physical contacts and incidents of disease. The infection itself remains hidden in the “in-between” of human interaction, in which our social life takes place.
In order to avoid damage and to avert dangers, politics must therefore get its grip on this “in-between”. In this interspace, however, all those remote and merely conceivable causes are operating whose effectiveness constitutes a free society: The meeting, handshakes, shopping, gatherings, socializing, varieties of team sports. None of these activities are harmful in themselves. None of these are the proximate cause for spreading the virus. They represent what the harm principle is intended to protect. The principle loses its sphere of application, however, because the cause of the infection can only be countered by containing the whole “in-between” of remote causes. The space of causes, in which the harm principle could perceive differences for the purpose of securing freedom, becomes closed. Everything harmless becomes harmful. Every freedom becomes a threat.
Interventions by the government are thus as necessary as they are excessive. They betray a disproportionality that is necessitated by the situation. The law begins to flicker between right and wrong.
5.
Those in charge of preventing the harm that might be caused somewhere in the interspace of social life have to put liberalism aside. This may explain our apathy. We submit in a dazed state to necessities that are inconsistent with liberty. We trust the good police. Without the harm principle we lack the intellectual means of resistance.
Perhaps it is this that explains the uneasiness with which we take comfort from our reasonableness.
Alexander Somek | Vienna | April 2, 2020
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