Law and ethics in the time of COVID-19

By Neil Pickering

In order to support its Alert Level 4 declaration, the New Zealand government has taken up extraordinary legal powers to control people’s lives.  As Professor Andrew Geddis of the Otago University Faculty of Law is reported to have said:

“These give the state extraordinary reach into our lives, and transfer extraordinary power to the executive branch. They are a marker of just how severe the threat that this virus poses to us all.”

What seems to be equally extraordinary is the degree of acquiescence with these powers that the New Zealand populace has shown.  From a psychological view-point, this may suggest that people are fearful of the disease.  From an ethical view-point, it seems that the vast majority of New Zealanders have recognised that the State is right to exercise its powers in this way at this time.  The minority who flout the laws are likely to be regarded as acting immorally, as well as acting illegally.

I was once at a meeting to discuss a possible change to New Zealand’s current Patient Rights document.  I was surprised and somewhat taken aback when one of the other participants ventured the opinion that if it’s legal, then it must be ethical (or words to that effect).  It set me thinking, because just at the moment, with the ‘battle’ against COVID-19 in full swing, the law and ethics are marching almost in lock-step. But it is worth reminding ourselves that while the law is an important tool for tackling COVID-19, and strongly reflects and enforces current moral imperatives, it is still not the case that what is legal is also thereby ethical.

The justification for the powers the New Zealand government (in common with many others around the world) has taken up is, as Professor Geddis implies, the severity of the threat to the populace.  This threat is not evenly distributed; older people, those with some comorbidities and those in poorer socio-economic circumstances such as crowded housing are more likely to be seriously affected.  New Zealanders in all groups have recognised the importance of protecting those who are more vulnerable.  In the light of the severity of this communal threat, the ethical balance between preventing harm and protecting liberty within NZ’s law is tipped towards the former.

In short the current laws, which heavily restrict people’s liberty, appear to be ethical.  In addition, the laws legitimate the use of the resources of the police and others to enforce behaviour.  Those who do things which are regarded as likely to spread the disease can be prevented.  People are being turned back at road blocks if they can’t provide good reasons for being on the open road.  The justice system backs the actions of the police and others, adding to judgements of immorality a public sanction, court appearances, fines and even imprisonment.  In this way, the laws – as they do in more normal times – provide a legal framework in which people can be held to account for at least some of their unethical behaviour.

A further layer of analysis may be added here.  The current laws seem in general to be ethical.  But what if in some aspects, the law may be said to have gone too far?  Indeed, the government has loosened some of the strictures of the laws imposed at the beginning of the current Level 4 Alert:  for example, in the case of the solitary job of the golf course green keeper.  In initially imposing the law in such a way that green keepers could not do their job, perhaps the government had overstepped a minor ethical boundary.  Nonetheless, it can reasonably be argued that there was still an ethical imperative to follow this particular rule, until it was relaxed.

The reason is that in the current situation, and indeed at other times, there is a general ethical expectation on citizens to obey the laws of the land.  Conformity to the law is ethical because it would potentially undermine social cohesion, if people were allowed to pick and choose which laws to follow and which to disobey.  The laws publicise behavioural expectations, even if on occasion those may fail an ethical test.

However, this should not lead one to the erroneous conclusion that whatever is legal is necessarily ethical at this or at any other time.  In some contexts, indeed, this is a potentially dangerous belief.  The law is an important tool in a pandemic where conformity of behaviour is required to achieve ethically sanctioned ends.  But there are fears that in the current pandemic crisis, as at other times, it could also be being used for other unethical purposes, for instance to accumulate power for political ends.  The belief that if something is legal it must also ethical could also be used to resist the reform of laws, or even raising questions about them.  It is the current balance of ethical imperatives that make the vast majority of what the present New Zealand government is doing acceptable.

Author:  Neil Pickering

Affiliation:  Bioethics Centre, Dunedin School of Medicine, University of Otago, New Zealand

Competing interests:  None

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