Public Health COVID-19 has often emphasized the need to balance the common good of public health with individual rights and freedoms, in addition to differing views about what the common good should entail. One might argue that this trade-off is only obvious because Rawls famously prioritizes basic rights and freedoms over the advancement of the common good.
‘The ideals of justice are to be ranked in lexical order, and hence the fundamental liberties can only be limited for the sake of liberty [rather than to advance the common good]'.
This objection, however, ignores another crucial element of Rawls' theory. People can only enjoy their human rights and freedoms, he believes, if they also have access to a social minimum package of products that protects them from things like poverty and disease.
This means that, under political liberalism, promoting the common good of public health is not in conflict with individual rights and liberties, but rather, at least in theory, beneficial to them.
However, it is implausible to say that any (temporary) infringements on human rights and freedoms are acceptable if they contribute to the long-term protection of those rights and freedoms. If that were the case, any form of authoritarian policy might be justified in the name of public health.
Instead, justificatory civility requires politicians to strike a fair balance of political principles by carefully balancing the promotion of public health in the long run to help people enjoy their basic rights and liberties against the short-term limits of those same rights and liberties that public health policies often entail.
Consider, for example, the religious believers' aversion to the wearing of masks. Some opponents can justify their opposition by citing contentious religious arguments, as in the case of Ohio state representative Nino Vitale. In other cases, such as plaintiff argues in the recent Florida court case Tillis v. Manatee County, opposition to mask-wearing laws has been justified by citing the right to religious freedom.
The First Amendment to the United States Constitution protects the right to free exercise of religion, and it is unquestionably one of the shared political ideals essential to political liberalism and public reason theories.
The use of this right differs from the use of claims based on a single religious religion. However, religious freedom arguments cannot be used to challenge any piece of legislation that even slightly infringes on that right.
When determining the constitutionality of a statute in the United States, courts typically use either a "fair basis test" or a "strict scrutiny test," particularly when the latter includes an alleged violation of citizens' fundamental rights.
The former requires that ‘[a] law or ordinance must have a legitimate state interest, and there must be a reasonable link between the statute's/means ordinance's and objectives' in order to be constitutional. The latter is more demanding, stating that "[t]o pass strict scrutiny, the legislature must have passed the law to further a "compelling governmental interest," and that "the law must have been specifically tailored to achieve that interest."
Both tests are likely to find mask mandates constitutional, since ‘[such] mandates do advance a legitimate state interest – the security of public health – and do it in a way that minimizes the infringement on the constitutional right involved, whether it is freedom of expression or religion.' These tests will therefore assist courts in striking a fair balance between various common democratic ideals that are fundamental to the popular culture of a western democracy like the United States in the form of COVID-19.
More broadly, these tests can provide policymakers with normative guidance for prioritizing one political value (for example, public health) while addressing others (for example, religious freedom) that may be temporarily harmed as a result. This will aid in the formulation and implementation of policies that adhere to justifiable civility principles.
Individual liberties such as freedom of movement and freedom of expression have been invoked in response to government policies such as lockout and stay-at-home orders.
We saw a large number of demonstrations around the world a few months into the global pandemic, with some highlighting the ‘alleged erosion of rights “that's been ramped up in unprecedented ways during this COVID-19 crisis”'.
Protests in some cases were even more serious and aggressive. Political leaders may bear responsibility for these extreme cases, such as when Trump posted messages on Twitter encouraging people to ‘LIBERATE' states like Minnesota, Michigan, and Virginia.
The so-called "sovereign people" movement, which has its roots in the United States but now has a global footprint, has also led protests against lockout and stay-at-home orders. Members of the movement have expressly criticized how government orders during the pandemic infringed on their freedom. Some of them have also assaulted or baited police officers in order to vent their anger. In two ways, these demonstrations are important to civility.
On the one hand, they can serve as a useful reminder for governments to take human rights (such as the right to free movement and expression) into account when adopting public-health policies, allowing those policies to be justified on the basis of a fair balancing of democratic values.
The protestors' demand for more justifiable civility, on the other hand, is often followed by both incivility as impoliteness and moral incivility.
When demonstrators use rude language or actions to articulate their opinions and demonstrate their indignation, the former expresses itself. During anti-lockdown demonstrations in Michigan's state capital, for example, protestors chanted "Lock her up!" at Governor Gretchen Whitmerand and deliberately disrupted traffic with the symbolic "Operation gridlock" because she was "driving them out of business."
When they injure other members of the public or attack police officers, the latter can be seen. We don't have enough room to discuss whether and when these types of "incivility as opposition" aimed at fostering justificatory civility are acceptable.
However, some factors to consider include the type of incivility used by protesters
(for example, impoliteness seems to be much less serious than moral incivility); the opportunities for protesters to communicate their message in more civil ways; and, finally, the extent to which governments fail to address individual rights and liberties while justifying their policies.
Another example of the need to reconcile various political principles is the conflict between the common interest of public health and economic liberties, as shown by the participation of bar owners in the so-called "Bar Lives Matter" demonstrations. The trade-off seems to be easier to overcome in this case.
First, although economic freedoms (e.g., bar owners' freedom to keep their bars open) are significant in a liberal democracy, they are arguably less important than fundamental rights and liberty such as freedom of expression and religion from a political liberalism perspective.
Second, the possible damage to public health caused by drinking in bars is much greater than that caused by other unhealthy practices in the sense of COVID-19. During a hearing before a US Senate committee in late June, Anthony Fauci, director of the US National Institute of Allergy and Infectious Diseases, said, "[b]ars: really not healthy." It's not looking fine... Within a pub, a swarm of people is bad news. We have to put a stop to it right now.'
Governments seem to be justified in prioritizing public health and basic democratic rights over the economic liberties championed in initiatives like "Bar Lives Matter" for all of these reasons.
In certain cases, the government has tasked companies with enforcing new health and safety laws, leaving them to strike a balance between the rules and workers' rights, such as the right to privacy.
For example, the President of a large personal care manufacturing company in Southern California explained his experiences dealing with the pandemic and reacting to employee safety issues at the office and in the plant: It's spreading like the flu, and I have no idea what people are up to on weekends. One of my employees came to see me and was visibly angry. One of her coworkers, with whom she shares a workspace, had shared a picture of them at a big barbeque on Instagram.
Now that they're in the workplace, I have no control of what they do on their own time. I want all of my workers to be at ease, but the laws don't always permit this. This example illustrates how lawmakers are not always confronted with conflicting political principles, leaving people and companies with the daunting task of solving these issues on their own in the face of ambiguous legislation and inadequate guidance.
To summarize, governments must devise policies that facilitate immediate public health results, such as stopping the spread of the virus and reducing deaths, while mitigating the temporary violation of fundamental political rights, in order to avoid the instances of justifiable incivility discussed in this article.
This is also for the benefit of corporations or other players tasked by governments with implementing public health policies and who may need more clarity in order to strike a balance between competing political values.
Governments should explicitly express the requirements for when and how such political principles can be prioritized over others, and how violations of fundamental rights and liberties are justified to the public. Some ethical structures will aid in the direction and justification of such decisions.
At the very least, politicians should understand when their policies are undermining or restricting certain democratic principles.
When liberal democratic governments enact policies that infringe on certain rights and freedoms, such as by coercive measures, they should emphasize that these measures are temporary and provide for exceptions (for example, from uniform travel bans or obligatory mask wearing) for specific people or situations wherever possible.
You may also want to read more analysis about the COVID-19 Pandemic here.