COVID, Morality, and Law
The claim that morality requires the observance of strict social distancing, and that this moral imperative justifies the temporary suspension of legal norms, is often invoked by proponents of COVID lockdowns. Since almost all moral systems call on individuals to care for others, it is clear that people should willingly sacrifice the momentary pleasures of a ‘normal’ life under extraordinary circumstances. Yet many people are unwilling to do so. They are, to borrow from David Foster Wallace’s commencement address, stuck in the ‘default position’ of human life, in which the great ‘I’ is in the center of the universe. Thus, it is the job of moral and political leaders to encourage – and enforce – the sacrifice of private liberty for public benefit.
Lockdown critics employ an entirely different normative framework, one in which the intentions of individuals take the back seat to the systemic effects of institutional arrangements. These effects are cast in the light of what may be called the Great Fact of human existence: extreme poverty – an income of less than 1.90 international dollars a day – is disappearing, fast. Since 1990, some 1.2 billion people have escaped the ranks of the extremely poor, a feat that is all the more marvelous considering that the earth’s population has increased by 2.3 billion in that same timeframe. As Bernie Sanders put it, “thank God” for…global capitalism.
It goes without saying that when the global economy is at a standstill, the extremely poor bear the brunt of the suffering. Indeed, the WHO reports that an additional “83 million people, and possibly as many as 132 million, may go hungry in 2020 as a result of the economic recession triggered by COVID-19.” The unintended consequences of lockdowns are likely to kill more people than the virus will.
COVID lockdowns demonstrate the limitations of reasoning from personal conviction because they so clearly highlight the way that incomplete information shapes moral feelings. As news organizations broadcast domestic death tolls, only one side of the trade-off between local and distant tragedy is evident. This partial picture pushes people of good will to embrace policies with deadly consequences. The complex webs of cause and effect that characterize modernity make it ever-more-likely that the force of morality is turned towards destructive ends when parochial public discourse obscures the realities of a globalized economy.
The conflict between intention and effect that is tragically evident in the specific case of COVID lockdowns underscores the general problem with moving directly from abstract moral principle to legislation. The relationship between normative judgment and legal principle is a complicated one, for ideas are not limited by time and space, while law is rooted in precedent, custom, and culture. Yet the impulse to move from moral conviction to legislative proscription is deeply rooted. It seems likely that most of the world’s first States (and a significant number of its present ones) were theocracies, and even secular nations still justify their own existence by appealing to notions of natural rights that cannot be defended without recourse to some ‘Higher Power.’
Even though there is a problem with moving directly from morality to law, this does not mean that there is no relationship between the two. It is difficult to imagine that a legal system uninformed by moral intuition would be worth defending. There just must be some sense in which law is normatively grounded. At the same time, if law changes as soon as a new moral judgment becomes popular, it will be subject to momentary fads. Thus, the challenge lies in tracing the contours of what is surely a complex connection.
While moral intuitions manifest as subjective experience, law aspires to universality. This suggests that the morality of a system cannot be evaluated on the same terms as the morality of an individual. Individuals think, feel, judge, try, and fail. Systems do none of these things – except for, perhaps, the last of them. However, this has not prevented people from pronouncing moral judgment on various kinds of social order. In this regard, claims of ‘systemic racism’ and ‘structural violence’ are a recent expression of a tradition that dates back to the days when economists were deemed ‘moral scientists.’ Inherent in this tradition is a conception of morality that sidelines the intentions of individuals.
Intention plays such an important role in moral reasoning because it imbues otherwise incomprehensible action with meaning. The moral meaning of an act can only be evaluated if it is purposeful – this is why morality is not typically ascribed to plants or animals. Purpose, or teleology, provides a framework in which people can make sense of things. Yet in the case of systems, there is no clearly articulated purpose that provides an easy reference point for judgment. A system can only be said to succeed or fail through reference to its goal, but it is not always clear what that could be.
In this regard, law and morality are very similar. There is no clearly articulated purpose to systems of morality, which emerge in every human society. Similarly, law, whether written or unwritten, is found in every community, but its teleology is a matter of interpretation. The issue of slavery shows that morality and law are not planned in advance, but change over time. They express themselves in what de Tocqueville called “habits of the heart and lip,” as well as in formal proscriptions. Both law and morality regulate individual behavior for the general good.
Thus, legal systems and moral systems require a similar approach. Just as it is impossible to make sense of purposeless action, it is impossible to evaluate a purposeless system. This means that in the case of both morality and of law, those who would judge must first tell a story that makes their system meaningful. The most promising – and popular – stories in the modern era are evolutionary. They go something like this:
Human beings evolve in response to environmental challenges. Along with thumbs and ears and eyes, they solve problems through language, morality, and law. These institutional adaptations enable peace and cooperation. Institutions are then an extension of nature – they form a sort of human ecology. In the words of Hayek, “human nature is very largely the result of those moral conceptions which every individual learns with language and thinking.” This heritage is not genetic, but it has gone through a selection process nonetheless.
Many of the most important developments in human history are adaptations to what the economist John Maynard Keynes called, “the dark forces of time and ignorance.” Among these adaptations are morality, which ordered human values in such a way that collaboration, rather than violence, became the order of the day. Similarly, the evolution of legal systems replaced physical strength with abstract principle, the first step towards a universalism that unlocks the potential of weak but intelligent individuals. Modern people reap the benefits of these adaptations even if they do not understand them.
Evolutionary stories such as these make it possible to evaluate moral and legal arguments against the backdrop of systemic purpose. A moral justification for a new legal regime can be evaluated on its own terms, but it can also be compared against the systemic role that morality plays in enabling human cooperation. This method provides a way to evaluate systems without speaking of intention. It also indicates that serious study is required before any moral intuition can inform legal reasoning.
If morality and law are not arbitrary inventions, but evolved solutions, the problems they resolve are no longer visible. However, this does not mean that they will not return as soon as the legal order is changed to match current notions of morality. This is why social thinkers who take a systemic approach follow Adam Smith in affirming that, “the peace and order of society is more important than even the relief of the miserable.” Solutions are not perfect; they always have trade-offs.
Those who wish to know what things may be unleashed by well-intentioned attempts to upend established principle have only to visit the countries hardest hit by the lockdowns. According to David Beasley, Executive Director of the World Food Programme, “we could see 300,000 die a day, for several months, if we don’t handle this right.” UNDP reports that for every three additional months of lockdown, 15 million additional cases of gender-based violence occur. Hobbes’ vision of human nature as “nasty, brutish, and short” is no fantasy. The moral value of normality is enormous.
Morality and law are likely to always maintain a close connection, for they have a similar origin and serve related functions. Yet so long as the impulse to translate moral feeling into legal action remains, this connection will be dangerous. The moral framework appropriate for individuals is entirely unfit for the evaluation of systems. This is the realm of moral science.