Rights in a time of pandemic

The coronavirus pandemic has emphasised the civic split between those who accept that exceptional times demand exceptional measures and those who believe that nothing should trump individual rights. Bioethics should make clear whose argument should dominate, but the customs and beliefs of our pluralist time mean that ethical reasoning lacks authority.

Bioethics is the branch of ethics that deals with human health and welfare, and the impetus to its rapid growth, elaboration and relevance can be traced to the Nazi Doctors trials after World War II and to a number of scandals in medical research revealed in the 1950s. These included the infamous Tuskagee syphilis project in which African-American men with syphilis were observed without treatment for many years despite the availability of penicillin in the later phases of the study; and the equally questionable Willowbank study in which children with disabilities were deliberately infected with hepatitis and monitored without treatment to document the course of the disease. In neither study was informed consent considered necessary, and any duty of care was held to be less important than the gathering of information about the natural history of disease.

Against this background ethicists began to formulate guidelines for sound medical research and practice, drawing on established models of ethics of human interaction with other humans, other forms of life and the environment. Plato and Aristotle provided their usual input into modern western thought and helped to define important issues such as responsibility, virtues, values, social practices, justice, consistency, education and governance. The great religious thinkers such as Augustine and Aquinas sought to ground ethics within the revealed will of God and God’s church. Descartes and the schools of the Enlightenment began to base their arguments within human reason, and moved the authority for ethical thought and argument progressively from its divine authority to appeals to logic and necessity. Hume, Kant, Hegel, Bentham, Mill, Moore, Russell, Wittgenstein, the American pragmatists and their successors – a great list of thinkers, sociologists, political theorists and anthropologists – have secularized ethics and bioethics progressively by invoking virtue, duty, consequences, common sense and reflective equilibrium.

At each step, with each movement, reasons for being ethical have been claimed and refined and recontextualized. Reasons for behaving ethically may have been intellectually persuasive, but the loss of some transcendental reckoning has meant that all ethical systems lack external authority, a persuasive reason to behave in a virtuous or reasonable way toward each other and to our environment. It is not enough to show that reasonable and informed people should act in certain ways if they and their social groups are to develop and function in ways that insure everyone’s survival, security and flourishing. Unless there is some compulsion, some element of must, individuals and groups with conflicting interests will seek to further their own causes when they can.

And this pursuit of self-interest is in many ways condoned and encouraged by contemporary values and attitudes. One of the most influential forms of modern bioethical thought has been principle-based ethics, elaborated and developed by Beauchamp and Childress, two ethicist-philosophers from the University of Georgetown. Their explanation was detailed, nuanced and rigorous and is always worth consulting. Unfortunately, they condensed their advice to four principles to be considered when examining any bioethical quandary: beneficence, the principle of doing good in health care, not merely intending it as benevolence; the principle of non-maleficence, of avoiding harm to others; of justice in the distribution of resources regardless of the social status of the patient or potential patient; and finally, of respect for autonomy, for the right of each individual to respect for their individuality and capacity for informed choice. The four principles were easy to teach and to learn, and they provided a way for health care workers generally to talk about ethical issues and to reflect critically on difficult choices between actions with valued outcomes – such as euthanasia and abortion.

That said, principlism seldom led to clear-cut decisions. It was more helpful in defining the reasons behind split-decisions, rather than indicating a ‘correct’ choice or leading to the most satisfactory outcome for conflicting parties. One of the obvious reasons for this lack of resolution lies with the principles themselves – in particular in the conflicted territory between justice and autonomy. Justice has communitarian implications including observing duties to social expectations, respect for the rights of others, and respect for the law.

Autonomy, in Western liberal societies, is strongly linked to rights, including the rights to self-expression, self-enrichment, self-governance, privacy, movement, social security, education and so on. But these rights require corresponding duties. Rights are real if and only if some entity guarantees that they can be enforced. Any enforcement in Western liberal societies requires some kind of justice system, since there is no other secular moral authority of enforcement against which to make a rights claim.

This appears to be an abstract argument, and it helps to give a real-life context, which is all too clearly offered by the responses to the current Covid-19 pandemic. The arguments for limiting its spread are compelling: it is potentially unpleasant and may lead to long-term consequences for infected individuals; it kills a significant proportion of those with co-morbidities; it may require life-support in intensive care units that have limited capacities in all countries; the illness spreads easily and the economic costs of illness are high.

Limiting the spread by relevant means seems to be a self-evident good from the communitarian perspective; but mass control by lockdown and isolation and quarantine infringes what many perceive to be fundamental rights that are supposedly guaranteed by the very system that now seeks to impose restrictions and limits to the entitlements supported by the rights argument. We can reasonably expect people to want protection from disease and to observe some form of public duty to protect the public of which they are members, but we must also expect that some people object to the communitarian perspective, privileging instead the form of liberal autonomy promoted in liberal democracies. This is the nature of the pluralism promoted by the kind of society in which we live.

There is an alternative view of autonomy that is appealing for those who find this present dichotomy unhelpful, and that is relational autonomy, a development of an argument much promoted by Dewey and the American pragmatists. They suggest that our autonomy, our individuality, develops and is maintained by our social embeddedness, that we are individuals who incorporate the values, permissions and restrictions of our families, social circles, schools, workplaces and biographical experiences, and that our autonomous decisions and claims to rights carry implications for our communities of discourse. In other words, our choices of rights and duties are not ours alone; they are socially situated and we cannot act alone as though we were atomic individuals.

While that construal is rational and reasonable, it once again provides no compelling argument that will decide the divergent claims between individual rights and communitarian duties. As our society is constructed (indeed as any society is constructed) we can classify all the available and possible actions that humans can perform into three moral categories – those that are forbidden and sanctioned by defined punishments (rape, murder, manslaughter, theft and many other actions depending on a culture’s traditions and laws); those that are enforced by law, permitted or encouraged (driving on one side of the road, speculating on the stock exchange, giving to charity), and those that have dubious status because they are subject to conflicting moral and legal interpretations (assault while drunk, privileging shareholders over workers, land clearing, biomedical alliances with commercial interests). The boundaries between these zones are permeable and movable. What is punishable by death in one era or in a particular state may be a venial infringement in another (blasphemy, adultery, for examples).

This lack of clarity means that it may be quite difficult for the citizenry to answer basic questions such as ‘What is socially condoned? What can I get away with? Do my first loyalties lie with myself or with my community?’ Someone with a communitarian cast of mind will give a different set of answers to a libertarian, and the pluralism of western liberal societies condones and encourages the differences. I personally feel that our duties to our species are of great importance because we share resources and responsibilities to each other and to our environment and therefore are, as Heidegger claimed, ‘thrown into’ duties toward the context in which we survive, seek security and the ability to flourish.

I can argue that we achieve nothing by constructing ourselves as atomic individuals within social systems that mould, constrain and liberate us to act as we do. But my arguments will be unlikely to influence the convinced libertarian, the committed capitalist or the believer in atomistic autonomy. And we lack any means to enforce either end of the spectrum of values or beliefs. We have to settle for compromises that recognize and respect difference and we have to negotiate policies of enforcement within changing contexts.

Such is the cost of democracy, that vital, disputed middle ground of governance that we make so central to our visions of ourselves. Dewey conceived of democracy as a collaborative enterprise that aimed to achieve meliorism, the goal of making inequitable things more equitable, of addressing unfairness and inequality, never achieving utopia but working always to make things better than they are or were. The trouble with that very reasonable-seeming idea is that it assumes too much of human nature and the interests of power. Collaboration can be a noble force, but vested interests drive powerful groups to collaborate only with those who reinforce and enact their own interests by means of money, force of arms or force of circumstances.

Beliefs and their underlying ideologies allow us to commit to the propositions from which we reason. If someone believes that individual autonomy is the summum bonum, then a perfectly valid argument can be constructed that concludes that any interference with rights of association and movement is always wrong and indefensible. By contrast, a believer in the primacy of social welfare will accept the need to isolate in times of pandemic. Both arguments can be logically valid. It is the propositions that pose the problem and the conclusions that become the battlefield. Reason alone is not sufficient to convince either party since it is not the rational process that is in question; it is the underlying beliefs. And beliefs have strong emotional components as Hume suggested in the 18th century.

Emotions remain powerful as persuasive forces. The resurgence of nationalism and what Judith Shklar has called the liberalism of fear bring people together, as it were to face some common enemy. We can watch, for example, the way in which Western governments are constructing China’s rise to world power as a threat to liberal democracy. The identification of an external enemy creates a powerful unifying force based on fear, and as the Soviets and the Nazis have demonstrated, a fearful population is more malleable than one that feels secure in its ability to claim rights and to trust its justice system. It is not surprising that, in the face of a pandemic, changing climate and changing world order, governments and social groups should resort to the rhetorics of fear or nationalism or law and order to create some authority to encourage compliance in the face of human individual variation.

Sadly, it seems that the Enlightenment revival of rationality as a replacement for divine authority may have been a powerful means of liberating human secular reasoning, but its emphasis on intellectual rigor and logical argument has not led to any utopian governance that can rule the minds of men and women in all their variation and in all contexts. Arguments support both those who agree with lockdowns, masks, hand hygiene and social distancing and those who argue for the importance of socializing, working with others nearby and maintaining an active and thriving economy.

The logics behind the arguments are perfectly valid; it is the values that lie behind the propositions on which the arguments are based and the consequences of the conclusions that are reached that are the matters in contention. Without an external authority, secular or divine, these differences are irreconcilable within our models of liberal democracy. Pluralism and democracy are mutually dependent and mutually contradictory when it comes to questions of mandate.

I don’t think that there are any clear and easy answers. Authoritarian dictators can construct order with fear and force, but history suggests that their systems are eventually self-destructive for exactly the same reasons that liberal democracies are beset with problems of compliance. Humans have individual differences, and they unite best under the stimulus of emotions such as fear or anger. The philosopher David Ross recognized this when he developed his ethical model of ceteribus paribus. He noted that people could agree on some ethical principles ‘other things being equal’.

Freedom of speech, freedom of movement and freedom of association, for example, were desirable ceteribus paribus. Things are not ‘equal’ in time of pandemic when general welfare is put at risk by such freedoms and logic suggests that freedoms need to modified in times of uncertainty. But for those whose identities and personal welfare depend on arguing otherwise, the concessions are too great – hence the violent confrontations at shopping malls, the resistance to social distancing and mask wearing, the dismissal of the social significance and the welfare consequences of the virus, as well as the arguments over vaccine development and vaccination. In some views, a virus like the current coronavirus cannot be allowed to interfere with individual rights and individual autonomy because these are the foundations of the liberal democracy in which we live and have the opportunity to flourish.

Everyone must be tired by now of being told that we live in exceptional times. But we do, and that is one of the major causes for exceptional anger, antagonism and fractures in society. There is no panacea short of a radical change in governance and a willingness to forego the benefits and shortcomings of the loosely conceived and imperfectly practised form of democracy in which we have developed. The consequences of such change would be unknown, but we should be wary of some directions of change because we have seen that alternative forms of government can be unstable, repressive and self-destructive. Either we live with our internal divisions, handling them in our ad hoc tradition of response or we turn to other modes of governance with their restrictions and dangers. We have no way to force people to change the beliefs from which they argue. That is both the strength and the challenge of the kind of governance under which we live our accustomed lives.

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Miles Little is a retired professor of surgery who started a bioethics centre at the University of Sydney.

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