Establishing the (special) Obligation to Obey the Orders of the State During a Public Health Crisis
Introduction
Evident from anti-mask to anti-lockdown protests, some members of the public seem to harbour quite serious misgivings to special government decrees enacted during the pandemic. Although generally lambasted as irresponsible in the media, such grievances are at least conceptually understandable, as the state orders in response to the pandemic usually require additional curtailment of our individual liberties and autonomy – values we hold dear in democratic societies. It is thus reasonable to question whether we have special obligations to obey these extraordinary state orders. By framing public health crises in the context of collective action problems, this essay first argues that government orders such as mandatory mask-wearing are at least instrumentally justified, establishing the case that there are at least good reasons for us to follow them. Then, the essay attempts to establish our ‘obligation’ by examining Gilbert’s 2 different conceptions of ‘obligation’ in relation to social contract theories. I argue that although we do have obligation to obey such orders, the extent to which this obligation is ‘special’ depends on which concept of obligation we employ. Regardless, I contend that we do have obligations to at least some orders of the state during public health crises.
State Orders During a Public Health Crises
Some defining features of public health crises (PHC) are that they generally have significant impacts on community health, loss of life, and on the economy (Gérvas & Meneu, 2010). More importantly, by examining the incentives of typical individual citizens and others, we would discover that such crises usually bring about suboptimal choices and social outcomes following rational decisions of the individual. Take the ongoing COVID-19 pandemic as an example, in the absence of any government regulation, an individual’s decision of whether or not to wear masks can be modelled as follows:
The values in the table shows the immediate outcomes for ‘myself’. Under the case where everybody else wears a mask, I am guaranteed to benefit from being protected against the virus. Thus, I expect a high positive outcome. However, this net benefit would be higher if I choose not to wear a mask, as wearing a mask carries certain cost (to a value of 1) such as personal inconveniences. As a result, I would be incentivised to ‘freeride’ on others’ mask-wearing behaviour. Under the case where everybody else do not wear a mask, the risk of getting the virus become very high regardless of whether or not I wear a mask or not[1]. Yet, I would still be better off not wearing a mask, given the cost associated with mask-wearing. As such, under this crude example, we see that regardless of the course of actions by others, rational individuals would always choose to not wear a mask. If we assume all individuals are rational agents like myself, then the society would end up in a situation where no one wears masks. This would no doubt lead to higher infections and thus deaths, which is harmful for the society. As such, the choices available to the individuals during a PHC set up a collective action problem, that is, a situation in which the group members have an incentive to choose to pursue individual gain, rather than behave in the whole group’s best long-term interest, thus resulting in a collective loss (Dawes, 1980).
On a societal level, such collective action problems generate a need for intervention by third parties (which in most cases will be governments through public authorities) with power to enforce decisions that brings optimal outcomes for the group (Harring, Jagers, & Löfgren, 2020). For example, making mask-wearing mandatory could effectively alter the decision matrix, by imposing extremely high costs to ‘not wearing masks’[2]. As such, such authoritative government orders are justified on a societal level, at least from a utilitarian point of view.
Further, not only does such a government order maximises social benefit (minimise social loss), but it is also in line with our individual reasons. Reverting to the decision matrix earlier, there exist considerable time inconsistencies in the values assigned to the outcomes. Although it can be considered more beneficial for me not to wear masks in the short-term, my long-term aims of not catching the virus and preserving my life remains. It would be in my personal interest to not get the virus in the long-term. Thus, the government’s mandatory mask-wearing policy is ‘aiding’ me to comply better with my long-terms reasons and interests. This is consistent with Raz’s instrumentalist view of authority, which argues that legitimate authority is established if the subject is “likely better to comply with reasons which apply to him, if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them.” (Raz, 1986) If one were to agree with Raz’s instrumentalist view, then the mask-wearing policy does have legitimate authority. According to Raz, this alone would be sufficient in requiring us to obey the orders. But even if we do not believe in the instrumentalist’s idea of legitimate authority, it is hard to deny that these orders are at least instrumentally ‘justified ‘ -- that there could be good reasons for us to follow them.
Yet, establishing the instrumental benefits of such policies does not necessarily lead to an obligation to obey them, especially if we do not agree with Raz’s arguments of legitimate authority. Worse still, instrumental benefits of government orders during PHC may sometimes not be established at all. It is not hard to conceptualise scenarios in which the government’s policy is genuinely not in line with the citizens’ reasons. For example, for people living in areas where COVID risk is extremely low, they could genuinely have strictly higher preference for going to work rather than staying home, as the income they could earn outweighs the expected negative outcome of catching COVID. In these areas, an order for a national lockdown would force people to stay home. This runs directly against the reasons of the people and does not in fact make them ‘better able to comply’ with their own reasonings. By the instrumentalist’s view, there would effectively be no reason for these people to support, let alone obey the order for lockdown. Thus, to further explore our obligation to obey state orders, we might need to shift the focus away from the consequences and consider what constitutes ‘obligation’.
Moral Obligation and Owed Obligation
To answer this, I believe it is helpful to distinguish between two kinds of obligation as pointed out by Margret Gilbert. I shall illustrate that under either conception, we do have a duty to obey these orders, albeit to different extents. Gilbert distinguishes between two kinds of genuine obligations. In the first sense, she believes that ‘obligation’ is the same as being the subject of a moral requirement. In the second sense, ‘obligation’ means owing’ something to another.
Our moral obligation to follow state orders during PHC can be established from a social contract point of view. Social contract theorists such as Hobbes, argues that people agree to form a government to escape the horrible conditions presented by the state of nature. There thus exists a ‘contract’ such that the state is authorised by the people themselves to act in their interest. Since we have a moral imperative (or duty) to carry out contracts that we consented to, so as not to render any contract meaningless, we ought to obey what the authorised government orders us to do as part of fulfilling our end of the contract. However, one could contend that the extent and kind of consent we give the government in the supposed contract could be contingent. The entirely new context of a pandemic would require new contracts (or ‘add-on clauses’ at least) and new authorisation that are specific to this context (Kessler, 2020). Hypothetically, this authorisation process could be carried out by means of a parliamentary vote in a democracy. If true, there is no moral imperative that compels us to obey these ‘new’ government orders (e.g. mandatory mask-wearing on the tube) unless there has been an explicit act of authorisation.
However, although it might be fair to challenge the extent of our initial contract, I believe that the context of PHC is already included in the original contract, at least in the Hobbesian sense. Central to the establishment of the original social contract is the idea of ‘state of nature’, where people are in a constant state of war for reasons of competition, diffidence and glory:
The first, maketh men invade for gain; the second, for safety; and the third, for reputation. The first use violence, to make themselves masters of other men’s persons, wives, children, and cattle; the second, to defend them; the third, for trifles, as a word, a smile, a different opinion, and any other sign of undervalue, either direct in their persons, or by reflection in their kindred, their friends, their nation, their profession, or their name. (Leviathan 13.7)
What Hobbes describes in the state of nature is exactly the type of risks and challenges presented by PHCs such as COVID-19 pandemic. At the start of the pandemic, people would in some cases fight over ‘limited resources’ such as toilet rolls. The mask-wearing decision dilemma presented earlier in the essay is also a manifestation of distrust among people during the pandemic. In other words, the various threats presented by PHCs can be thought of as ‘state-of-nature-kind-of-threat’. These are exactly the kind of events that the government is originally instituted to protect us from. Thus, it can be argued that we have already contractually authorised the government to take necessary actions during PHCs that are targeted to protect us from theses threats. As such, we still have a moral obligation to obey such orders. It is important to note that such obligation is still context-independent, that we ought to obey all government orders during PHC. This is because, in Hobbes’ conception, it is not in our interest to disobey such orders, as the alternative is a terrible state of nature. Since there is effectively no new contract needed in our context, the context-independent obligation to obey state orders remains. Hence, we have a moral obligation to obey state orders during PHC, and such obligation is by no means ‘special’ or ‘additional’.
A more fundamental objection can be raised against the idea of consent and social contract itself. All modern citizens have been born into a state of de facto submission to their governments without any act of explicit consent. The only act that comes close to an act of authorisation is participating in democratic elections. Hence, there is no good reason to believe that we have explicitly consented to these additional, extraordinary government actions, thus rendering us free from obligation to obey.
To answer this challenge, I turn to Gilbert’s second non-moral conception of obligation, which describes a normative relationship between two or more parties, one that can be created via a suitable act of will. In this sense, Gilbert demoralises the concept of obligation such that it is derived from one's participation in a special kind of (joint) commitment. Taking this idea back to the contract, in forming a polity and by being a member of a particular polity, we sign a contract not merely as an act of authorising the government, but also as an act of joint commitment with others in the society. This is similar to the social contract process that Locke describes, in which there are two stages in forming the contract. The first stage is the association of the people and the second stage is the establishment of government. Gilbert’s idea of ‘joint commitment’ can be thought of as describing the contract ‘signed’ by people to form this association. In this regard, I believe at least two joint commitments among members of any polity could be theorised. Firstly, commitment to mutually respecting and exercising the contract with the government, and to obey government orders, unless there is a reason to jointly disband the government. This commitment is essential to forming a functioning government-led polity and ensure no one would act against the group in order to gain an advantage. In committing to such a collective goal, obligation is created by virtue of this joint commitment. We thus owe it to one another and to our joint commitment to obey government orders. In this first theorisation of joint commitment, our obedience to the government is generally context-independent. We ought to thus obey all government orders during the PHC, unless some of these orders give us good reasons to jointly disband the government.
A weaker form of commitment could be proposed in connection with our context of PHCs. In breaking away from the state of nature, where life is “nasty, brutish, and short” (Hobbes, 1651), it would have been in our collective interest to commit to protecting and promote the welfare of everyone who is a member of the polity. Afterall, this would become a central goal of the government. If this at least this version holds, we would have an obligation to commit to protecting each other’s welfare, most important form of which is life. As such, it would be part of our obligation to act in obedience to policies that allow us to attain that goal. This weaker theorisation of the joint commitment in the context of PHC implies that our obligation to obey state orders is somewhat context-dependent. We only ought to at least obey those orders that helps us delivering on the commitment to better welfare of all.
In conclusion, I have argued for our obligation to obey state orders during public health crises from three perspectives. From a more consequentialist view, we see that these orders could help overcome collective action problems present in a PHC and bring about better social outcomes. This establishes the instrumental benefit of state orders. Further, I considered Gilbert’s two conceptions of obligation in relation to social contract theories. The moral conception requires us to obey state orders during a PHC regardless of the context and content of the orders. The same obedience requirement is obtained from the strong theorisation of the joint commitment conception. A weak version of the joint commitment, however, would mean that our obligation to obey orders during PHCs is ‘special’ – we only need to at least obey orders that protect and promotes welfare of the general public.
References
Bai, N. (2020, June 26). Still Confused About Masks? Here’s the Science Behind How Face Masks Prevent Coronavirus. Retrieved from University of California San Francisco: https://www.ucsf.edu/news/2020/06/417906/still-confused-about-masks-heres-science-behind-how-face-masks-prevent
Dawes, R. (1980). Social dilemmas. Annual Review of Psychology, 169-193.
Gérvas, J., & Meneu, R. (2010). Las crisis de salud pública en una sociedad desarrollada. Aciertos y limitaciones en España. Informe SESPAS 2010 [Public health crises in a developed society. Successes and limitations in Spain. SESPAS report 2010]. Gaceta Sanitaria, 24(Suppl 1), 33-36. doi:https://doi.org/10.1016/j.gaceta.2010.06.009
Harring, N., Jagers, S. C., & Löfgren, Å. (2020). COVID-19: Large-scale collective action, government intervention, and the importance of trust. Elsevier Public Health Emergency Collection.
Hobbes, T. (1651). Leviathan. In T. Hobbes. Chapter and paragraph numbers from the web extracts at <http://studymore.org.uk/xhobint.htm>.
Kessler, D. A. (2020, April 20). We Need a New Social Contract for the Coronavirus. Retrieved from The New York Times: https://www.nytimes.com/2020/04/20/opinion/coronavirus-social-contract.html?auth=login-google
Raz, J. (1986). The Morality of Freedom. Oxford: Oxford University Press.
[1] As masks are most effective at preventing viruses from being transmitted out by the wearer, rather than protecting the wearer against virus from outside. (Bai, 2020)
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