Lockdown Dissent
One of the more curious features of the lockdowns and other regimes brought in to protect against the pandemic has been the emergence of do-it-yourself forms of anarchism.
There are many who profoundly disagree with the polices of Shut and Stay Home. They range from conspiracists and deniers to those with serious worries about liberty, and economic, societal, and wider health damage. Among the sceptics, there are some that think they have found ways of legitimately defying the law (if that is not an oxymoron).
There are two main strategies. One is an appeal to a higher law, or legal principle, which is claimed to trump the shoddy efforts of Covid regulations. The other strategy involves the interesting proposition that laws, any law, are not binding on those who do not consent to be bound.
The first strategy has most traction in countries, such as the USA, that have a written constitution. There, mandatory mask wearing, closure of churches etc, can be assailed as violations of constitutional rights; and you may indeed get somewhere with these claims, and get some real redress (perhaps depending on your court).
In England, more ingenuity is required.
The ancient document that many lockdown resisters appeal to is Magna Carta, the medieval “Bill of Rights” promulgated in 1215. One of the original provisions allowed for the lawful resistance of the ruled (in fact a handful of barons) against the monarch if the monarch overstepped his legal powers. Resisters have fastened on this.
There’s a problem. The provision was dropped from the second edition of Magna Carta, promulgated a few years later. Nevertheless, some believe that its ghost lives on, as a few bits of Magna Carta remain law to this day. This reluctance to let go seems to rely on the totemic power of Magna Carta as a charter of liberty whose force remains undimmed through the centuries. But people, including legal historians, have misunderstood the context and purpose of Magna Carta. It was not the prototype universal Bill of Rights it has been romanticised as.
Jonathan Sumption, Lord Sumption, is both an eminent lawyer (a recently retired Justice of the UK’s Supreme Court) and a distinguished Medieval historian. He is also a vocal libertarian critic of lockdown restrictions. And, somewhat ironically, he is trenchant demolisher of Magna Carta myths.
The 800th anniversary of Magna Carta fell in 2015. Sumption gave a commemorative address at the British Museum that is a brilliant take down of the false history of the document. He points out that it was essentially a charter restating and regulating existing feudal rights and obligations between the monarch and barons. It is not, says Sumption, “the foundation document of the English constitution”. Sumption’s address ends:
So when we commemorate Magna Carta, perhaps the first question that we should ask ourselves is this: do we really need the force of myth to sustain our belief in democracy? Do we need to derive our belief in democracy and the rule of law from a group of muscular conservative millionaires from the north of England, who thought in French, knew no Latin or English, and died more than three quarters of a millennium ago? I rather hope not.
The second resistance strategy, that of refusing consent to the law, arises from various anarchist traditions, of both left and right, which have rejected the legitimacy of states.
Anarchism is best practised if you can find a remote place where law enforcement won’t bother you much. Hence the presence of semi-outlaw communities in wilderness areas of the US. However, it is not very clever to self-proclaim as an anarchist outlaw if you own a lockdown-breaking business in a dense British conurbation.
These shenanigans gesture towards more interesting questions, some of which have real life impact for all of us. These are: what are the foundations of a state’s legitimacy, of its right to coerce its citizens (and others)? In particular, do we, as a state’s citizens have a moral obligation to obey or suffer its laws (a corollary of the legitimacy question). Of course, we have good prudential reasons to obey laws – to avoid punishment and blots on our reputations.
The most illustrious theorists of legitimate sovereignty, Hobbes and Locke, did indeed ground legitimacy and the obligation to obey on the consent of the subjects. But they had to imply that consent, as it is unlikely in any large and complex state to be expressly given except in limited particular circumstances.
Consent, according to the classic tradition, is necessarily implied by citizens’ rejection of the terrible anarchy that would subsist in the absence of a state’s authority. (See post on Hobbes, 20th May 2020)
There are other arguments for a moral obligation to obey the law – duties to your community; a duty of fair play (don’t take the benefits of society without accepting the obligations).
None of these theories completely wins out. And there is another theoretical tradition that denies that states have legitimacy on any of the previous or other grounds, and that therefore denies that states’ laws have an irresistible moral claim to be obeyed.
This is philosophical anarchism. Most theorists of this kind are careful not to say that their arguments entail avoidance of the law or downright disobedience, let alone revolution. They concede that there are states whose arrangements are generally beneficial and worth supporting. “all things considered”. But they do say that there is no moral obligation to obey the law as such.
Let’s consider the extreme demands of pandemic law, which seeks to regulate our lives in minute particulars. In practice, do we feel obliged to obey, other than from fear of sanctions? I suggest that our sense of obligation is fairly selective, and in some cases does not exist at all.
Undoubtedly there is, or should be, a strong sense of solidarity, of community and fair play, in interactions with strangers in public places and inside permitted premises. There’s a duty of care to the elderly and vulnerable. But many don’t feel the same obligations about arbitrary limits on numbers for even the shortest social interaction, or about the prohibition on even the shortest indoor visits (which are analogous to popping into a shop), even though we concede the obligation to avoid large, sustained groups or lengthy visits. (I avoid any mention of the discreet, but prohibited, use of second homes.)
In short, we often make our own rules and exceptions, subject to our own precautions.
But here’s one moral obligation: if someone prefers closer adherence to the law than you do, respect that completely, and do not impose your (possibly imprudent) libertarianism on them.
I conclude that the theorists that claim that there is no absolute requirement to obey the law may be nearer to the human truth of the matter than those that seek to ground a universal obligation. Many obey because of “all things considered”, and an inner moral compulsion to obedience is much stronger in some cases than others. The public safety considerations of obeying traffic laws are overwhelming, even to the extent of stopping at a red light in deserted streets (because of worthy strong internalisation). This sense of obligation should be present in our public interactions during the pandemic. But the obligation is not there when we stop to chat “unlawfully’ with another family in the street.
Our obligations as citizens may be contingent, not absolute, even if, “all things considered”, we obey laws when there is no obvious prudential reason (the deserted red traffic light). But, in liberal societies, rulers must continuously renew justifications for their rules. There is no higher order Hobbesian imperative to obey.
March 2021
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