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Conservatorships and the Problem of Possessing People

photograph of legal consultation with one party pausing over contract

For the second time in recent years, conservatorships are in the news. Like the many articles discussing Britney Spears’s, these accounts often highlight the ways the conservatorship system can be abused. News outlets focus on abuse for good reason, there are over 1.3 million people in conservatorship/guardianship in the United States, and those in such a position are far too often taken advantage of.

But there are other ethical concerns with conservatorship beyond exploitation. Even when a conservator is totally scrupulous and motivated merely by the good of their conservatee, there is still something ethically troubling about any adult have the right to make decisions for another. As Robert Dinerstein puts it, even when conservatorship “is functioning as intended it evokes a kind of ‘civil death’ for the individual, who is no longer permitted to participate in society without mediation through the actions of another.”

So, what is the moral logic underlying the conservatorship relationship? What are the conditions under which, even in principle, one should be able to make decisions for another person; and how exactly should we understand that kind of relationship? These are the questions I want to address in this post.

So What Is a Conservatorship?

Tribb Grebe, in his excellent explain piece, defines a conservatorship as “a court-approved arrangement in which a person or organization is appointed by a judge to take care of the finances and well-being of an adult whom a judge has deemed to be unable to manage his or her life.”

(You may sometimes hear conservatorships referred to as guardianship. Both the terms ‘conservatorship’ and ‘guardian’ are terms defined by legal statue, and while they usually mean slightly different things, what they mean depends on which state you are in. In Florida, a conservatorship is basically a guardianship where the person is ‘absent’ rather than merely incapacitated or a minor, while in other states a conservator and guardian might have slightly different legal powers, or one term might be used for adults and the other for minors. For most purposes, then, we can treat the two terms as synonymous.)

A conservatorship is, therefore, an unusual moral relationship. Normally, if I spend someone else’s money, then I am a thief. Normally, I need to consent before a surgeon can operate on me. — no one else has the power to consent for me.

Or at least, conservatorship is an unusual relationship between two adults. It is actually the ordinary relationship between parents and children. If a surgeon wants to operate on a child, the surgeon needs the permission of the parents, not of the child. A parent has the legal right to spend their child’s money, as they see fit, for the child’s good. Conservatorship is, essentially, an extension of the logic of the parent-child relationship. To understand conservatorship, then, it will be useful to keep this moral relationship in mind.

Parents, Children, and Status

My favorite accounts of the moral relationship between parents and children is given by Immanuel Kant in his book The Metaphysics of Morals. Kant divides up the rights we have to things outside ourselves into three categories: property, contract, and status. Arthur Ripstein introduces these categories this way: “Property concerns rights to things; contract, rights against persons; and status contains rights to persons “akin to” rights to things.”

Let’s try to break those down more clearly.

Property concerns rights to things. For example, I have a property right over my laptop. I don’t need to get anyone else’s permission to use my laptop, and anyone else who wanted to use it would have to first get my permission.

There are two essential parts to property: possession and use.

Possession means something like control. I can open up my laptop, turn it on, plug it in, etc. I can exercise some degree of control over what happens to my laptop. If I could not, if my laptop were instantly and irrevocably teleported to the other end of the universe, I could not have a property interest in the laptop any longer. I would no longer have possession, even in an extended sense.

Use, in contrast, means that I have the right to employ the laptop for my purposes. Not only do I have some control over the laptop, I can also exercise that control most anyway I want. I can surf the web, I can type up a Prindle Post, or I can even destroy my laptop with a hammer.

Use is why my laptop is mine, even if you are in current control of it.  If I ask you to watch my laptop while I go to the bathroom, then you have control of the computer, but you don’t have use of it. You don’t have the right to use the computer for whatever purpose you want. If you destroy the laptop while I’m away, then, you committed and injustice against me.

Contract involves rights to other people. If you agree to mow my lawn for twenty dollars, then I have a right that you mow my law. This does not mean that I have possession of you. You are a free person; you remain in control of your actions. So, in contract I have use of you, but not possession of you. I have a right that you do something for my end (mowing my lawn), but I am not in control of you even at that point. I cannot, for instance, take over your mind and guide your actions to force you to mow my lawn (even though I have a right that you mow my lawn).

This is one way in which contract is unlike slavery. A slaveowner does not just claim the use of their slave. They also claim control over the slave. In a slave relationship, the slave is no longer their own master, and so is not understood to have possession of their own life.

Of course, another difference between contract and slavery is that contract is consensual. But that is not the only difference. If the difference were simply that slavery was not consensual, then in principle slavery would be okay if someone agrees to become a slave. But Kant rejected that thought. Kant argued that a slavery contract was illegitimate, even if the slave had originally consented.

Status is the final relation of right, and it is status that Kant thinks characterizes parents and children. According to Kant, status is the inverse of contract. In contract, I have the use, but not the possession, of someone else. In status, I have the possession of another but not use.

What could that mean?

Remember that t to have possession of someone is to have a certain control over them. Parents have control over the lives of their children. Parents can, for instance, spend their children’s money, and parents can force their children to behave in certain ways. Not only that, but parents can do this without the consent of their children. These relationships of status, then, are very different from relations of contract.

But then why isn’t a parent’s control over their child akin to slavery?

To distinguish relations of slavery from relations of status, we need to attend to the second half of a status relationship. Parents have possession of their children, but they do not have the use of their children.

Let’s look at the example of money first. Parents have possession and use of their own money. That means parents controls their own money and have the right to spend it however they want. In contrast, parents have the possession, but not the use, of their children’s money. That means that while parents can control their own money, they cannot just spend it however the parent wants. Instead, parents can only spend the money for the good of the child. While I can give my own money away for no reason, I cannot give my child’s money away for no reason.

Parents have a huge amount of control over their children’s lives. However, Kant thinks that parents can only rightly use that control on behalf of their children. This does not mean that parents cannot require their children to perform chores. But it does mean that the reason parents must assign chores has to be for the moral development of the child. Kant was critical, for instance, of people who had children just so that they would have extra hands to help with work on a family farm. Because children cannot consent to the control that parents have, therefore, parents wrong their children if they ever use that control for their own good as opposed to the good of the child.

The Fiduciary Requirement

Parents, then, act as a kind of trustee of their child’s life; they are a fiduciary. The word ‘fiduciary’ is a legal word, which describes “a person who is required to act for the benefit of another person on all matters within the scope of their relationship.” As Arthur Ripstein notes, the fiduciary relationship is structurally parallel to the parental relationship.

“The legal relation between a fiduciary and a beneficiary is one such case. Where the beneficiary is not in a position to consent (or decline to consent), or the inherent inequality or vulnerability of the relationship makes consent necessarily problematic, the fiduciary must act exclusively for the benefit of the beneficiary. It is easier for the fiduciary to repudiate the entire relationship by resigning than for a parent to repudiate a relationship with a child. But from the point of view of external freedom the structure is exactly the same: one party may not enlist the other, or the other’s assets, in support of ends that the other does not share.”

This is a powerful explanatory idea, and recognizing these fiduciary relationships helps us explain various forms of injustice. For example, since in a fiduciary relationship one is only supposed to act for the good of a trustee, this can be used to explain what is unjust about insider trading. If I use my position in a company to privately enrich myself, then I am abusing my office in the company. The private knowledge I have as an employee is available to me for managing the affairs of the company. To use that knowledge for private gain is to unjustly use the property of someone else.

This relationship can also help us understand political corruption. The reason it is unjust for presidents to use their office to enrich themselves, is because their presidential powers are given for public use for the sake of the nation. To manage the government for private purposes is to unjustly mismanage the resources entrusted to the president by the people.

Why Status

But even if we know the sort of relationship that obtains between parents and children — a type of fiduciary relationship — we still need to know why such a relationship is justified. After all, I can’t take control of your life, even if I use that control for your own good. I can’t do so even if I am wiser than you and would make better decisions than you would yourself. Because your life is your own, you have possession of your own life, not matter how much happier you would be if I took control.

The reason why parents have possession of their children is not that parents are wiser or smarter than their kids. Instead, it is because Kant thinks that children are not yet fully developed persons. Children because of the imperfect and still developing position in which they find themselves, are not able to be in full control of themselves (for a nice defense of this view of children see this article by Tamar Schapiro). Of course, the legal relationships here are crude. It is not as though the moment someone turns 18 they instantly pass the threshold of full moral personhood. Growing up is a messy process, and this is why parents should give children more and more control as they mature and develop.

Conservatorship

And just as the messiness of human development means that people should often have some control over their lives before they reach the age of 18, so too that messiness means that sometimes people must lose some control over even after they reach adulthood.

Just as children are not fully developed moral persons, so someone with Alzheimer’s is not a fully developed moral person. We appoint a conservator over someone with Alzheimer’s not because the conservator will make better choices, but because people with Alzheimer’s are often incapable of making fully developed decisions for themselves.

This, then, is the basic moral notion of conservatorship. A conservator has possession but not use of their charge. They can make decisions on their behalf, but those decisions have to be made for the charge’s good. And such a relationship is justified when someone is unable to be a fully autonomous decision-maker, because in some way their own moral personhood is imperfect or damaged.

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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.

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Morality Pills Aren’t Enough

close-up photograph of white, chalky pill on pink background

Here’s a problem: despite the coronavirus still being very much a problem, especially in the US, many people refuse to take even the most basic precautions when it comes to preventing the spread of the disease. One of the most controversial is the wearing of masks: while some see wearing a mask as a sign of a violation of personal liberties (the liberty to not have to wear a mask, I suppose), others may simply value their own comfort over the well-being of others. Indeed, refusal to wear a mask has been seen by some as a failure of courtesy to others, or a general lack of kindness.

We might look at this situation and make the following evaluation: the problem with people refusing to take precautions to help others during the current pandemic is the result of moral failings. These failings might be the result of a failure to value others in the way that they ought to, perhaps due to a lack of empathy or tendency towards altruism. So perhaps what we need is something that can help these people have better morals. What we need is a morality enhancing pill.

What would such a pill look like? Presumably it would help an individual overcome some relevant kind of moral deficiency, perhaps in the way that some drugs can help individuals cope with certain mental illnesses. The science behind it is merely speculative; what’s more, it’s not clear that it could ever really work in practice. Add concerns about a morality pill’s potentially even worse moral consequences – violations of free will spring to mind, especially if they are administered involuntarily – and it is perhaps easy to see why such a pill currently exists only in the realm of thought experiment.

But let’s put all that aside and say that such a pill was developed. People who were unempathetic take the pill and now show much more empathy; people who failed to value the well-being of others now value it more. Also say that everyone was happy to get on board, so we put at least some of the bigger practical worries aside. Would it solve the problem of people not taking the precautions that they should in helping stop the spread of coronavirus?

I don’t think it would. This is because the problem is not simply a moral problem, but also an epistemic one. In other words: one can have as much empathy as one likes, but if one is forming beliefs on the basis of false or misleading information, then empathy isn’t going to do much good.

Consider someone who refuses to wear a mask, even though it has been highly recommended that they do by a relevant agency, or perhaps even mandated. Their failure to comply may not be indicative of a failure of empathy: if the person falsely believes, for example, that masks inhibit one’s ability to breathe, then they may be as empathetic as you like and still not change their minds. Indeed, given the belief that masks are harmful, increased levels of empathy may only strengthen one’s resolve: given that one cares about the well-being of others, and believes that masks can inhibit that well-being, they will perhaps strive even more to get people to stop wearing them.

Of course, what we want is not that kind of empathy, we want well-informed empathy. This is the kind of empathy that is directed at what the well-being of others really consists in, not just what one perceives it to be. A good morality pill, then, is one that doesn’t just supplement one’s lack of empathy or altruism or what-have-you, but does so in a way that it is directed at what’s actually, truly morally good.

Here, though, we see a fundamental flaw with the morality pill project. The initial problem was that since those who refuse to follow guidelines that can help decrease the spread of the coronavirus refuse to listen to the evidence provided by scientific experts, then we should look to other solutions, ones that don’t have to involve trying to change someone’s beliefs. The problem with focusing on one’s moral character instead, though, is that bettering one’s moral character is a project that requires changing one’s beliefs, as well. The morality pill solution, then, really isn’t that much of a solution at all.

The morality pill, of course, still exists only in the realm of the hypothetical. Back in the real world we are still faced with the hard problem of trying to get people who ignore evidence and believe false or misleading information to change their minds. Where the morality pill thought experiment fails, I think, is that while it is meant to be a way of getting around this hard problem, it runs right into it, instead.

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Anti-Lockdown Protests: Private Liberty v. Common Good

photograph of family at Open Ohio protest

Thousands of Americans across various states have decided to take a stand against the lockdown measures imposed on them as the COVID-19 pandemic sweeps across the nation. In a particularly large protest in Washington state’s capital of Olympia, over 2,000 people gathered to fight for relaxed rules for the economy. Others have been much smaller—such as the 200 people who gathered outside of Indiana Governor Eric Holcomb’s residents to show their disapproval of the strict stay-at-home orders. Protesters carry signs with slogans ranging from “Land of the Free” to “The cure is worse than the virus” to “Let me work.” They often are advocating for an ease in lockdown measures, a reopening of the economy, and the opportunity to return to their jobs. They feel as if the government has restricted their freedoms too much, and are fighting for their rights. Protesters are using their right to freedom of expression to fight for their right to assemble, as well as the ability to work to earn money for their families. However, many protesters do not follow social distancing restrictions or wear masks, per Dr. Fauci and the National Institute for Health’s recommendations. Some experts worry that their protesting could lead to an increase in COVID-19 cases, more deaths, and possibly a prolonged quarantine period. This issue has sparked debate and controversy across the country. Technically, protesters are exercising their constitutional and basic human rights. Yet, is it ethically correct for them to do so, if it could make others sick—possibly killing some?

There is no easy or straightforward way to answer that question. To grasp the moral conflict at play, one must understand the idea of collective action. Managing the risks of the current crisis will require a concerted group effort. Unfortunately, what individuals perceive as their best interest is sometimes at odds with what is in the best interest of the group. Achieving the best public health outcomes for everyone involved may require individuals to forgo some of their rights, their jobs, and social lives. For example, it may be in the individual’s best interest to buy as many masks as possible to protect himself from the virus, but hoarding masks will cause a shortage for others, especially those that need them (such as healthcare workers). This situation gives each person the opportunity to benefit themselves, while spreading the negative consequences of their actions across the larger population.

This tension between the need for collective action and the exercise of individual rights is at the heart of the recent protests in America. Protesters are looking for what is in their best interest—exercising their constitutional freedoms, returning to their places of business, and seeing their friends and family—while the entire community will share any negative outcomes of their protesting. We can examine this problem by looking at both sides of the argument.

Let’s start with the protester’s point of view. There have been signs that America is reaching “the top of the curve,” and infection rates have decreased in some states. Yet, there is no sign that the strict lockdown measures that Americans have lived under for weeks will be loosened anytime soon. The protesters are people fighting for their freedom—and they have valid reasons to do so. All citizens of the United States have had some of their basic freedoms restricted in the hope of slowing the spread of the virus. There are curfews, business closures, and church gathering bans. They have no right to freedom of assembly, and have been heavily encouraged to wear masks. Many have lost their jobs because of lockdown measures—over 6.65 million Americans filed for unemployment at the start of April. Protesters want their normal lives and freedoms back. They want to be able to work to earn money for their families.

Many protesters don’t believe that their rights should be taken just because the government says so. And they have taken a stand to show their disapproval. For example, a protester in California stated that “We need our freedom back, we need to be able to work, we need to be able to socialize, as soon as we can.”

Many protesters share the opinion that the government has been too controlling over their lives and decisions—some have stated that the prolonged lockdown is “basically slavery.” They feel as if the government is being too intrusive without giving them a say in the matter. One protester went as far to say that the California governor Gavin Newsom is a “dictator” for promoting strict lockdown measures. California residents have experienced one of the strictest stay-at-home orders in the country—receiving countless alerts on their phones from the government promoting social distancing, staying at home, and closing businesses. They are only allowed to leave their house for “essential needs/work,” and their governor shows no sign of easing restrictions anytime soon. This can be seen as an invasion of privacy and a violation of their rights.

Some other protesters feel that it is the obligation of the government to try to “fix” the problems that the lockdown has caused. The quarantine that the government issued has negatively impacted private and small businesses, as well as citizens’ livelihoods. This means that the government may have to be the one to fix or mitigate the damages that their lockdown caused. However, many citizens have had economic troubles because the relief bill assistance has been slow to arrive. And it is not only citizens marshaling these arguments, Missouri Senator Josh Hawley has stated that the government is responsible for offsetting what lockdown measures have cost the country.

Others simply feel that lots of the government requirements and action taken are unnecessary. The 2019 novel coronavirus is usually only fatal to those with compromised immune systems or those with old age. Protesters don’t feel as if they, as healthy individuals with strong immune systems, should be stuck at home, unable to work and live relatively normal lives. The signs they carry (“Quarantine the sick, not the healthy”) show this sentiment. Protesters in rural areas also feel as if the lockdown measures aren’t as necessary where they live, as their population is less condensed as it is in big cities, making it harder for the virus to spread.

And while many protesters gathered in large crowds without masks, ignoring safety recommendations, many others have not. There are protesters who wear masks, or who have been protesting in their cars instead of gathering with other people.

However, many people disagree with the protests. They believe that protesters are not taking proper precautions to protect against the disease, and they could cause an increase in cases, deaths, and possibly increase the quarantine period.

“Give me liberty or give me death” is a frequent slogan in protest. But as many have suggested, protesters could be “campaigning for both.” It is a fact that many protesters, especially in news footage, were not following social distancing precautions. They were gathered in crowds as large as 2,500 and most were not wearing masks to prevent spreading the virus. Experts worry that these anti-quarantine protests can cause a surge in COVID-19 cases. Rachel Revine, the Pennsylvania State Health Secretary, stated that “This is how COVID-19 spreads,” when talking about the protests. Eric Feigl-Ding, an epidemiologist and public health scientist at the Harvard TH Chan School of Public Health, tweeted that he predicts a “new epidemic surge” with an incubation period of about 5-7 days before the onset of any symptoms and transmission, concluding that there will likely be “[an] increase in 2-4 weeks from now” of cases in America.

Some nurses who do not support the protests have also made their opinions known. A few (in Harrisburg, Pennsylvania and in Denver, Colorado, to name a few) have stood in a counter-protest at crosswalks, blocking the cars of angry protesters. In Michigan, many healthcare workers have complained that the protests caused them to arrive late to work. Some ambulances have had a slight delay in reaching the hospital because of the gridlock protests.

Others simply don’t agree with the message of the protests. They feel as if strict lockdown measures should still be in place. America has been the center of the pandemic, with over 735,000 known cases and 40,000 known deaths nationwide. Many don’t feel that their country is ready to re-open. For example, Rachel Revine said that there needs to be a decrease in cases and an increase in the amount of tests produced, stating that “the idea that we can ease up is exactly the wrong answer.”

Yet one of the main reasons that people are not pleased with the recent protests is because they feel as if the protesters are not thinking about the common good. Protestors carry signs saying “My body, my choice.” But, is it really their choice? Their actions could lead to an increase of coronavirus cases, and possibly fatalities, in their community.

It all comes back to the idea of collective action. The individual protester sees it in their best interest to protest for their own rights, and for their own ability to work—they fully have this right to freedom of expression. But many protesters aren’t asking themselves what the possible costs of their actions could be. By gathering in large crowds without masks to protest for what is in their own short-term benefit, they could cause an increase in COVID-19 cases. This can risk the lives of everyone in the community, and undoes a lot of the “progress” made under the quarantine.

Could we outwit human nature’s phenomenon of collective action? It would involve us as individuals sacrificing some of our own wants for the good of the community. Protesters may have to use social media or other digital platforms to have their voices heard and make a stand without endangering the vulnerable people in their community.

This coronavirus pandemic is a difficult time for all of us. We’ve stayed inside for weeks, many without jobs or people to interact with, to help “flatten the curve.” And now, as people call for change through protests, we may run the risk of increasing COVID cases. In the midst of the uncertainty and the controversy, one thing is for certain: We need to ask ourselves what possible costs our actions have for others. We must consider the phenomenon of collective action—are we acting in the interest of our own individual short-term pleasure, only for the entire community to share the negative effects of our actions? In this case, only time will tell.

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States of Exception

photograph of Chechpoint Charlie memorial site today

Now, many weeks into the rolling global coronavirus outbreaks, large-scale community lockdowns, and broad economic shutdowns; through a plethora of views on what the longer-term outcomes of this situation may be, it is clear that we are living through exceptional times.

Globally, as governments scramble with varying degrees of success to get a hold of the crisis, many countries have declared states of emergency.

Emergency decrees involve assuming certain types of exceptional powers by a government for the duration of a national emergency. Certain rights and civil liberties are curtailed and the protection of certain basic rights is suspended in order to ameliorate the threat.

Currently, in response to the global coronavirus pandemic, roughly one third of the world’s 7.5 billion people are in lockdown or under some form of ‘physical distancing’ restriction on free movement and association. In many areas authorities are enforcing curtailments.

We know from infectious disease experts that these measures are essential – the human population has no immunity to this novel coronavirus and a vaccine or effective treatment may be some way off. The only strategy we have is halting its ability to spread by our behavior.

Nevertheless, the question of how states of emergency are instituted and maintained raises important ethical questions in which the relationship of the state to its citizens is at issue.

Emergency decrees are quite obviously a potential problem in places where authoritarian governments and heads of state are already actively seeking means to extend or consolidate power, and for whom emergency decrees represent an opportunity to legitimize extraordinary levels of state coercion and control.

But even in the most “functional democracies” civil libertarians are counseling us to be vigilant. Even where people recognize the necessity of social distancing and accept the curtailments that states of emergency place them under, it is vitally important to remain conversant with the pressures this puts on our political and social order.

The modern democratic state is founded on ethical principles of rights and personal/individual freedoms. It gains legitimacy from democratic participation of citizens, and is based on a concept of the ‘social contract’ in which there is a tacit agreement by individuals to submit to the sovereign or state. The rule of law offers individual protection of rights and freedoms and endeavors to provide public goods like social harmony.

So the modern democratic state is built on the (ethical) notion that individuals have rights and duties in respect of each other. These rights and duties are mediated by the state, so that individuals have rights and duties in respect of the state under the social contract. The social contract is submission to, and protection under, the rule of law.

The primary function of the state should be to strike a balance between the ethical imperatives of freedom and ‘common good, as the rule of law.

Under what is described by Carl Schmitt in legal theory as a ‘state of exception,’ the sovereign possesses the ability to transcend the rule of law for the public good.

What is the ethical character of the state of exception? States of emergency or states of exception put a certain pressure on the social contract and represent an ethically dubious space.

The particular concerns that civil libertarians have around the use of emergency decrees all converge on this question of what sort of ethical zone a state of exception is, as a zone where the contract has to be temporarily renegotiated and a new balance has to be struck between individual freedom and common good.

There is a general concern that such a balance should err on the side of protecting privacy, freedom of expression, and other basic tenets of liberal democracy.

The important political and ethical question at the center of the state of exception is: how does the exception relate to the norm?

If the norm is the rule of law, then is the state of exception to be inscribed within it, and curtailed by it, or does the state of exception itself stand outside the rule of law?

In the first case, the state of exception is ‘built in’ to the state – so that checks and controls are placed upon exceptional state measures.

But if this is the case, then it is hard to see how it remains exceptional rather than becoming the norm, since building the exception into the state itself leads either to an infinite regress (by seeking exceptions to the exception), or cancels out the exception altogether by constitutionally inscribing the exception into the state as the norm.

In the second case, the state of exception is ‘extra-juridical’ in character – according to the argument that it is not desirable to control executive action in emergency with standard judicial accountability mechanisms.

But here, state power begins to exceed state power, so to speak, and not being subject to juridical order it represents a zone wholly external to the rule of law and the protections and rights and responsibilities that the rule of law enshrines. It is therefore difficult to see how the social contract can be said to hold under such a situation.

If the sovereign’s exceptional decree is not subject to constitutional constraint, the power to decide on the state of exception is therefore the power to decide what should count as a state of exception, potentially maximizing the state’s capacity to function outside the rule of law.

The Italian philosopher, Georgio Agamben, has argued that the state of exception is a zone which is not properly ‘internal’ nor ‘external’ to the state, but represents a kind of political, juridical, and ethical gray area where the distinctions between ‘inside’ and ‘outside’ are blurred, and that it in fact represents a realm of human activity not subject to the rule of law.

While there may not be sufficient evidence for Agamben’s claim that the modern democratic state is in a permanent state of exception, this accompanying claim bears thinking about: The state of exception assumes a fictitious political character in which the vocabulary of war is maintained, to justify recourse to government powers. Agamben believes the state of exception is a fiction sustained through military metaphor.

I do not here claim that the current emergency decrees across the world are fictions, yet it bears noticing that vocabularies of war are certainly sustaining them.

For Agamben, the stakes are high, and the danger is the slow disappearance of meaningful political action, because the attempt to encompass states of exception into the rule of law by legitimizing them represents a recognition of what is outside the law, and prompts sovereign attempts to encompass that very outside within the law. As a legal category, the state of exception therefore extends and completes the law’s empire.

What, then, is the peculiar ethical space of a state of exception, and what does that mean for us?

It is unclear what relation the exception has to normality, and what relation it has to the rule of law. Part of the point is about the possible erosion of civil liberties, but Agamben’s deeper worry about the slow disappearance of meaningful political action suggests that even as we remain committed to the truly monumental global effort to stem the tide of the coronavirus pandemic, we still need to pay attention to the pressures that government control of these measures places on the social contract between the state and its citizens, and to what it means for political discourse.

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Decriminalizing Domestic Violence in Russia

Within every state, leaders strive to find a perfect equilibrium between individual liberty and the state’s responsibility to protect its people. The balance found, however, is often based on the ideals of the system of government in place. Finding this balance is complex enough on its own, and becomes far more complex when one considers the corruption of Russia’s government and the KGB officer-turned-president, Vladimir  Putin. Russia’s recent decision to pass a bill to decriminalize domestic violence, then, has many wondering what the true motives of this bill are. Does the government believe it to be in the nation’s best interest, or was it passed to alleviate financial burdens and reinforce gender inequality and the old Russian proverb, “if he beats you it means he loves you?” It is also important to consider that even if the government believes it is in the state’s best interest, does it have a responsibility to protect and punish violent actions taken inside families, or is it acceptable to allow families individual liberty to make their own judgment calls?

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