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The Moral Need for Public Conversation about Rights in a Pandemic World

photograph of protester holding sign reading: "Freedom from Tyranny Don't Tread on Me" in front of State building

The COVID-19 pandemic has created several problems that pit sacrifices for the collective good against individual resistance on the basis of upholding some perceived “right.” For example, should people be expected to wear masks? Are people obligated to follow social distancing guidelines? Is a lockdown justified? Are we obligated to get vaccinated once it is possible? But, what do we mean by “rights” in these cases? And, how has an understanding of political philosophy (or lack thereof) helped or harmed social attempts to manage these problems?

Resistance to social-distancing and mask-wearing is controversial. Those who have been most vocal in their resistance have acknowledged the pushback they get. It is no surprise why either: failure to wear masks, failure to socially distance, failure to isolate, and failure to eventually get vaccinated make the problem of the pandemic worse for everyone else and will likely prolong its effects. Consider the issue of following social-distancing guidelines. A party of about 25 people this month led to over 350 people having to quarantine after the party became a super-spreader event. The less effort that people put into following public health recommendations, the easier it becomes for the virus to spread and the worse the rest of us are for it. Now polling suggests that only 58% of Americans plan to get vaccinated, and if there is great resistance to vaccination then the problem will only be prolonged further.

There are a myriad of possible reasons for not following these guidelines (and in some cases laws), but one that is often cited is that the guidelines are a violation of individual freedoms or rights. Several of the protests, rallies, and calls for “liberation” from lockdowns and mask mandates have justified their actions on the basis that such measures violate fundamental freedoms and rights. For example, MLB player Aubrey Huff declared in June that requiring people to wear a mask is “unconstitutional to enforce,” and as The Washington Post reports, “many say that they have a ‘constitutional right’ not to wear masks and mask mandates are forms of totalitarian rule.” In Brazil, President Jair Bolsonaro declared that he would refuse to get vaccinated, citing his rights. Even in Canada the provincial government of Alberta, currently one of the worst hotspots in the country, has resisted mandates on the basis that it could infringe on constitutional rights. Premier Kenny recently pointed to Canada’s Charter of Rights and Freedoms as a reason they are avoiding greater restrictions.

Of course, the question really is whether people do have a right to not wear a mask or do have a right to violate public health regulations. As many Canadian legal experts have pointed out, Kenny’s reasoning is faulty. Canadian rights and freedoms are inherently subject to “reasonable limits” by the constitution as can be justified in a “free and democratic society,” but American constitutional rights are slightly more absolute in character. Still, where is the protected right to not wear a mask or to violate public health standards? Many would argue that they are covered by the first amendment, but short of a court ruling on this matter, it is hard to argue that one has that right at all. If I were a legal positivist, for example, I might suggest that the only “rights” that one has are ones that are determined by court rulings. Therefore, in keeping with the positivist slogan that ‘law is law,’ until courts rule on the constitutionality of something like a mask mandate, one cannot claim they have a right to not wear one. On the other hand, one may take a more natural law view and proclaim that such rights are not for courts to say we have them, they are inherent and inalienable.

Regardless of whatever right is actually protected by whatever court, people will continue to resist if they ‘feel’ it within whatever perceived ‘folk’ conception of rights they have. Thus, this is not merely a public health issue or a legal issue, but a philosophical issue in the truest sense. What justification do people have for proclaiming that they have a certain right? For example, if someone who rejects the mandated wearing of masks because it violates their rights, do they perceive these rights as inherent or conventional? Also, how are generally understood constitutional rights translated into perceived rights to take certain actions in specific situations like not wearing a mask? A common aphorism about rights holds that one’s right to wave one’s fist ends at the tip of another person’s nose may be used to justify resistance to health measures. But, what about when the concern isn’t a fist touching your nose, but the particles you expel into the air? Whose nose takes priority, everyone else in public or the people who refuse to wear a mask?

Through all of the problems of masks and public health mandates, the central question is what should be the relationship between society and the individual and to what extent does the individual have to make a sacrifice? These kinds of questions will only become more significant over time. Many governments may need to raise taxes to pay for pandemic-related spending. The public may be expected to practice further sacrifice and restraint in the future in the face of climate change. If so, then for the sake of the public democratic conversation alone, it would not hurt if people were more familiar with the philosophical justifications they think they have for resisting efforts to effect the common good. Perhaps civics education and the practice of being a good citizen should include a background in political philosophy?

One really good reason to consider this is that traditional ‘folk’ understandings of rights are often based on historical notions that do not fit the modern highly-connected world. Despite what many may think, even philosophers like Locke, who was influential in formulating such rights, believed that rights do not eliminate obligations to others.  The action of one individual can have such far reaching consequences (such as one house party leading to hundreds of infections and possible deaths) in a way that was not possible when the concept of rights in a liberal democracy were formulated. A more public conversation about how we collectively ought to understand our rights and obligations in the 21st century could alleviate political confusion and delayed action. Another good reason is it would make it more obvious when people assert some right arbitrarily. One does not get to claim a right merely because they feel they have one, nor can they legitimately claim “I exempt myself” without reason.

On the other hand, traditional political philosophy can also confuse and obstruct the kinds of interactions that take place between an individual and society. Perhaps the problem is retreating behind political philosophies which have become political dogmas. Instead of thinking about the individual and the state as ontologically separate things which are opposed, we may instead consider the scientific reasons why the public is so skeptical and so unwilling to work for the common good. If we treat society and individuality as a process of securing capability and responsibility, then the moral lesson might be to not make this a rights issue at all. Perhaps the problem we face is how to secure public cohesion so that more people are willing to do their part even if they have a right not to.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.