State of Emergency and the Fragility of Liberty Facing COVID-19

Both sides of the transatlantic alliance, America and Europe, pride themselves on their commitment to freedom. And rightly so: these political communities emerged out of histories of extended emancipation struggles, laying claim to rights against pre-democratic authoritarian states, just as they have done battle with modern, totalitarian dictatorships. The fundamental assumption that individuals have a right to freedom against the state as part of their catalogue of human rights defines the political self-understanding of this Western community, and this assumption has spread around the globe far beyond the geographical West. It has however not spread everywhere to be sure: neither Putinist Russia nor Xi’s China embraces freedom, although in both countries there are brave regime critics who risk their lives in freedom’s pursuit. They deserve our support.

Yet although liberty is so central to the Atlantic community, we have seen it suddenly and strictly curtailed in the current state of emergency response to the spread of the coronavirus. German philosopher Otfried Höffe examines this alacrity with which liberty has been abandoned here and subjects it to perceptive criticism. Of course public health measures to limit the spread of the virus are necessary, but Höffe points to the disturbing eagerness with which policies have been imposed, which may go beyond appropriate measures. One might dwell on the particular policy failings everywhere—Höffe naturally focuses on Germany and the EU—but his analysis points to several conceptual points that apply broadly and to the United States especially.

Höffe is a philosopher of Aristotle and Kant, so it should surprise no one that he reminds us of the importance of freedom: freedom from excessive restrictions by the state is the foundation of the freedom to shape our lives according our own aspirations. Yet evidently we are living in societies characterized by a willingness to surrender freedom quickly and without much process. Who knew that we all have emergency laws on the books—the German term Notstandgesetz has ominous recollections from the past—that allow executive authorities on various government levels to issue prohibitions willy-nilly? Most obviously we have seen freedom of association, freedom of travel, and freedom of worship peremptorily suspended, even though all of those rights might well have been safely preserved, limited only by reasonable hygiene precautions such as social distancing. Add to those a threat to the freedom of speech of the critics of the catalogue of the lockdowns: most clearly in terms of restrictions on communication on social media platforms but also in the vilification of critical dissidents. Certainly some of these voices are deeply flawed, e.g., the conspiracy theorists, but others are thoughtful observers of current developments. In any case, the adage ought to hold that the best antidote to wrong speech is more and better speech, not prohibition of speech.

This rapidity with which we have accepted the logic of repression also reflects a particular narrowness of vision. The restrictions on liberty were accepted—initially in a panic in response to exaggerated worst-case scenarios—in order to prevent a wave of COVID-19 that could overwhelm intensive care capacity and lead to a high rate of fatalities. Of course we should try to minimize fatalities, but is that humanity’s sole good? Initially little consideration was given to the consequences of the restrictions: the economic impact on businesses and their employees, the loss of schooling for students, and the erosion of many industries. Höffe points in particular to how small shops are failing in city centers, which will have a long-lasting effect on the character of urban life. The predominant response to the public health crisis has been informed solely by the medical point of view rather than attending to the other perspectives that ought to contribute to policy formation impacting the multiple dimensions of social life.

In the polarized environment of the presidential campaign in the United States, the Trump administration’s efforts to consider economic costs and to balance them against public health needs were dismissed as too transactional. Now the new administration is scrambling to repair the economy, effectively continuing its predecessor’s concern with livelihoods, and not just lives. It is important to keep in mind how we live and not only that we live. Höffe’s exhortation to balance public hygiene goals against the value of individual freedom, including the freedom to earn a living by participating in the economy, maps on to the arguments in the United States by thinkers such as Scott Atlas. They are being proven right, as governments on both sides of the Atlantic face the carnage caused by stifling the free market through often arbitrary restrictions.

Two related issues overlap: the importance of having diverse voices involved in the formulation of coronavirus policy—not only medical science but also economists, legal experts, healthcare policy analysts, sociologists, and representatives of business, labor, and the cultural sector. An interdisciplinary forum might be able to weigh different goods against each other (Höffe participates as a philosopher in just such an interdisciplinary group advising the government of Nordrhein-Westphalia). Social policy should not be ceded exclusively to epidemiologists, who may know a lot about infections but not necessarily much about the consequences of school closures. Nor however should social policy be ceded to any group of experts, no matter how well rounded. Interdisciplinary experts should advise the government certainly, but ultimately it should be the democratically elected representatives of the people—not the scientific experts—who decide, knowing full well that they will have to face their constituents in the future. That is no guarantee of a watertight solution, but it does introduce an element of responsibility that is lacking when authority is handed over de facto to scientists who will never have to face voters and whose future employment is unassailable, even if their recommendations turn out to have been very wrong. Höffe’s argument on this point regarding Germany resonates strongly in the American situation, where the assumption that medical experts should have the final say has gone strangely unquestioned. Hence his critique of the slide into “expertocracy.” The alternative would be democracy.

This indication of the vulnerability of democracy conjoins with a further feature identified by Höffe for Germany but which has a parallel in the United States and arguably in other Western countries: the accrual of power of the executive branch. The Bundestag has given little serious analytic attention to the COVID-19 restrictions in Germany, just as in the United States the action has resided largely with the governors, not the state legislatures. The Biden presidential campaign criticized Trump for exercising insufficient emergency authority—he was not dictatorial enough, so to speak; it remains to be seen if the new administration will act differently. However, the tendency to rule by executive order has already been quite evident in Biden’s first days, in line with his predecessors of both parties. The troubling conclusion to draw is evidence of a secular tendency toward a weakening of legislatures and a transfer of power to the executive branches (or, in the United States, to the judiciary as well, which is forced to make calls too controversial for a timid Congress to address). This problem goes far beyond the immediate coronavirus crisis and points to our contemporary crisis of parliamentary democracy.

A final ethical consideration: we face a choice between prioritizing safety (health, security, life) or prioritizing freedom (our liberties and our rights). To be sure, this is not an either/or, and temperate considerations are called for in specific cases. Traffic lights are not a worrisome limitation of freedom, but they do provide for security at a relatively low cost; meanwhile in Germany in particular, speed limits on the Autobahn do elicit arguments about freedom. The COVID-19 crisis should be a wake-up call not only about future pandemics but about the fragility of our liberties. How much freedom are we willing to give up in order to gain how much safety? Will we even be asked when our freedoms are curtailed? How much do our liberties matter to us, and how durable will they be in the face of future declarations of emergency?