Otfried Höffe is a philosopher known especially for his writings on Aristotle, Kant, and ethics. In April 2020 he was appointed to the twelve-member Corona expert commission to advise the government of Nordrhein-Westfalen. The University of Chicago Press has recently published a translation of his Critique of Freedom: The Central Problem of Modernity. The following essay appeared in Die Welt on February 3, 2021, and is translated here with permission of the author.
It is hard to believe. More than seventy years after the adoption of the Basic Law, a constitution opposed to all dictatorships, two principles have ceased to be self-evident: the content of the basic freedoms and the separation of powers in the organization of the state.
That the COVID-19 pandemic has challenged the policies of all states is obvious, as is the fact that one could hardly expect to reach an optimal strategy spontaneously. However one should not forget that the virus, and consequently COVID-19, has been known since December of 2019. Therefore the experts and, prompted by them, the media and the politicians should have started making plans already then. One should not have waited for the pictures from Bergamo from February and March 2020 and then react in the sort of panic that disturbing images make inescapable. In any case, there was significant time for preparation that was just not used. Nor did one bother to ask if there were not important difference between the German and Italian healthcare systems.
For these two and other reasons, the community, its citizens, the economy, schools and universities, the diversity of society, and the multifaceted cultural life have all had to face the imposition of restrictions on freedom that can only be designated as lockdowns.
A large part of the public was so quickly convinced of the legitimacy of the restrictions on freedom that it pushed aside the skepticism that usually applies in constitutional democracies in the face of intrusions by the state. Yet freedom is in truth the highest human good; freedom is the foundation of dignity. As implied by the relevant keywords of self-determination, self-realization, and responsibility, freedom enables individuals to live their lives according to their own conceptions—as long they do not impinge on the legitimate rights of others. This positive understanding of freedom, the freedom to do, presumes the negative concept, the freedom from. For this reason, we must not forget that rights to freedom were born out of the painful experiences with the absolutist authoritarian state and were won as defensive rights against the encroachments of state power, not infrequently through struggles that cost lives.
For decades, social scientists and politicians have clamored for more sociability and solidarity. The restrictions on freedom in the lockdown rules will achieve the opposite, not only briefly but for the long term and with ongoing impact: The inner cities are growing desolate. Because people are using delivery services more and more, the small stores that previously served their needs are facing bankruptcy and will largely disappear. In addition to these significant economic difficulties, an important piece of the culture of life is being lost because cafés and restaurants are are not only there for eating and drinking but also for companionship and, with the appropriate quality, culinary pleasure. Not least of all, the world of associations, clubs, and the richness of cultural life, if it has not already collapsed, has been regrettably impoverished into the degraded form of online meetings.
Therefore we must pose a question: The rules concerning social distancing, hygiene, and masks are relatively harmless restrictions on freedom, which are furthermore quite defensible in terms of reciprocal consideration and safety. In contrast, limits on contacts (why are not even two married couples, mutual friends, permitted to meet?), and closing hours (why in one state is it 8:00 PM, another 9:00 PM, and in Italy 10:00 PM? why is it not only a matter of prohibiting alcohol consumption in public but also the imposition of nighttime curfews?) are infringements on freedom that are so deep and so little intuitive that they demand a convincing justification. The burden of proof is on the side of the restriction that has been compulsorily imposed with the threat of significant fines.
A question in all modesty: Is there reliable evidence that proves that cafés and restaurants, theaters, concert halls, and operas, as well as museums have contributed significantly to the dissemination of the virus, despite strict and carefully observed rules concerning social distancing, hygiene, and masks?
A personal experience may be illustrative: At a performance of the Baden-Württemberg State Theater last fall, disinfectants were available for obligatory use at the entries, masks had to be worn until the start of the performance, every other row was blocked, and in our open row next to us two seats were blocked; a visiting friend from Stuttgart had to sit in another row. Why is that not sufficient? Why were the summer festivals in Salzburg able to develop and execute a fairly generous plan in a way not permitted in Germany, even though no reliable proof justifying this prohibition was even hinted at?
According to the main argument for these enormous restrictions on freedom, our healthcare system faced a threat of being overwhelmed. In reality, during the first coronavirus wave, perhaps one or the other intensive care station was at the limit of its capacity. In general, however, there were so many free units that, without denying our own citizens the necessary help, we could fortunately assist neighboring countries. And at the end of last year, according to the Interdisciplinary Association for Intensive and Emergency Medicine, 15 percent of the intensive care beds were empty. In addition, there was an emergency reserve of 10,000 beds. Of patients in intensive care, only one quarter was ill “due to or with” coronavirus.
In addition, one must not forget that healthcare is only one among the basic rights and is not a trump card that could displace all the others. Since it has no absolute priority that would exclude any balancing of goods against other freedoms, it is appropriate today to seek out solutions that allow for greater freedom.
Nor is it any less reasonable to take a somewhat wider look and to remember, for example, that in Germany every year some 15,000–20,000 people succumb to infectious diseases, and many others die of lung diseases, without our being able to control this situation. Similarly we have to learn to live with the coronavirus and its many mutations despite all the efforts this will require. The dominant coronavirus policies involve a “supervised thinking” that is reducing our legitimate free space in an illegitimate manner, in the name of a care obligation that does not belong to the state.
An additional accusation follows: Why do we in Germany have not just too little but much too little vaccine? If our liberties are being cut back, then it should be for as briefly as possible and the vaccination should be accelerated. Why was Israel able to vaccinate half its population by the end of January, and why does Great Britain expect to reach 15 million Britons, about a quarter of the population by the middle February with a first vaccination? Our health minister Jens Spahn, in contrast, is promising timely vaccination only for a fraction of the population, those above 80 years old, and not until the end of March. A few days ago in Baden-Württemberg an 83-year-old colleague could not even get registered for a first shot.
The excuses are well known. Yet in other cases they are not received so easily. Wrong decisions that are not far from political failures usually elicit emphatic and repeated criticism. In addition, the Nobel Prize winner in economics for 2019, Harvard Professor Michael Kremer had early on proposed not only investing in the number of vaccine doses and their development costs but also providing direct support to the production costs.
In any case, the strategy of the European Union was not fully convincing: collectively ordering the vaccine at the EU level, but leaving the organization of the vaccinations to the individual countries. Evidently the strategy of reducing the vaccination price was not optimal. Elsewhere that sort of strategy is discredited as cold-hearted economizing; the existentially overwhelming obligation to protect life, society, and economy demands a better response.
The relevant criticism of the predominant coronavirus policy should go even further. The prominent Berlin virologists and epidemiologist regularly announce the newest numbers of infections and fatalities, but then they like to add their own recommendations, typically for an extension or tightening of the lockdown. But one has to ask whether they have the professional competence to do so? Of course they are experts for the numbers and statistical changes. But these data are less meaningful than the recommendations suggest. First of all, much more important than the number of infections is the number of patients with symptoms severe enough to require artificial administration of oxygen.
Please, No Expertocracy
As far as the fatalities go, they involve those who die “due to or with” coronavirus. But between “due to” and “with,” there is a significant difference. As the autopsies conducted in Hamburg a few months ago showed, only a fairly small number of those who died “due to or with” coronavirus in fact died due to coronavirus.
Even if one disregards this concern, a different significant methodological problem remains. As shown by the Nordrhein-Westfalen Expert Council and its interdisciplinary membership, well-grounded recommendations require cooperation with other disciplines including economics and social sciences, as well as legal scholars. In addition, representatives from business and the cultural world should be included. Furthermore and not least of all, for recommendations a weighing of different desiderata is necessary, which the debates of an expert council could try to carry out in a kind of experimental pursuit of consensus. These experts however must not be the ones who make the decision; that is reserved only for the elected representatives of the people. Otherwise democracy turns into an expertocracy. In order to avoid this perversion, elected representatives must not subordinate themselves voluntarily to pure disciplinary specialists, especially not when they come from a too narrow a range of disciplines. Those experts should keep in mind the familiar wisdom: “Cobbler, stay at your bench.”
With regard to the actual site of decision, the body of the elected representatives, there is an additional problem with the current coronavirus politics, i.e., the disproportionate power of the executive. This is due to an unarticulated but therefore all the more influential disrespect for the legislature that amounts to a silent contempt for the democratic separation of powers. As the Basic Law states clearly, executive and legislative branches are tied to law and justice. For this reason and especially with regard to such important policies as the current curtailments of freedom, parliaments are not only called for; they are absolutely vital. Yet in fact, both on the federal and the state level here in Germany, while the elected representatives of the people have not been fully silent, they have, to put it mildly, observed a “distinguished reserve.”
In Dubio Pro Libertate
For example, a law giving the federal government the power for extensive limitations on basic rights was debated, in a remarkably mild manner, during the morning in an all too short session of parliament; it was approved by the Federal Council, the upper house, in the afternoon; and the Federal President signed it on the same day. And the political world prided itself on this speed. With the qualification that I am only an attentive and no longer young citizen, but not a specialist, I must say: I have never experienced anything like this in our republic.
It is hardly disputable: The executive has attained a superior power—or only somewhat overstated, it has seized it, which is troubling from the standpoint of democracy theory. Moreover in the parliamentary debates there are too few weighty critical voices. The representatives only repeat or reaffirm what the government parties have put forward. And if one includes the state parliaments then, with the exception of the AfD, nearly all parties are in a government somewhere.
After these reflections, the conclusion can be brief: Instead of the principle “in dubio pro securitate”—when in doubt, choose safety—it would be better to follow a principle that would secure all of our basic rights: “in dubio pro libertate,”—when in doubt, chose freedom— and the legislature should not surrender the effective control of this principle.
To this I add a final warning: The current policies on both the European and national levels for greater indebtedness threaten to harm what we have long seen as the obligation of generational justice: to avoid burdening our children and grandchildren with high national debts. This obligation also has a meaning for freedom: the coming generations should be free to follow their own political projects.
Translated by Russell A. Berman, with comments here.
