In response to the COVID-19 pandemic, the world saw an unprecedented wave of paternalistic government public health policies being implemented around the globe. ‘Legal paternalism seems to imply that since the state often can know the interests of individual citizens better than the citizens know them themselves, it stands as a permanent guardian of those interests in loco parentis’ (Joel Feinberg ‘Legal paternalism’ (1971) 1 Canadian Journal of Philosophy 105).
Paternalistic government policies are often criticized on the grounds that they infringe on civil liberties. Some of these policies violate derogation provisions, and others even violate non-derogable rights that are regarded as core human rights, jus cogens, and obligations erga omnes due to their normative specificity and status (art 4 of the International Covenant on Civil and Political Rights 1966 (ICCPR)).
What kind of paternalism is compatible with an open and democratic society based on freedom and equality and a legal system that recognises fundamental human rights as espoused in the ICCPR and the South African Constitution? Do governments have the right to influence citizens’ behaviour through vaccine mandates, mask mandates, travel mandates, social distancing mandates, alcohol mandates, isolation mandates and stay at home mandates? Or does this create an authoritarian state, leading to infantilisation, demotivation, and severe breaches in individual autonomy and freedom?
This article examines key issues related to the appropriateness of paternalistic public health measures during the COVID-19 pandemic and investigates under what circumstances paternalistic policies may be justified.
Legal paternalism defined
‘“Paternalism” comes from the Latin pater, meaning to act like a father, or to treat another person like a child. In modern philosophy and jurisprudence, it is to act for the good of another person without that person’s consent, as parents do for children. It is controversial because its end is benevolent, and its means coercive. Paternalists advance people’s interests (such as life, health, or safety) at the expense of their liberty. … Paternalists suppose that they can make wiser decisions than the people for whom they act (Peter Suber ‘Paternalism’ (https://dash.harvard.edu, accessed 6-12-2021)).
Paternalistic policies have three essential elements, it –
Impure paternalism describes interventions in which ‘the class of persons [being] interfered with is larger than the class being protected’ while in the case of pure paternalism, ‘the class being protected is identical with the class being interfered with’ (Gerald Dworkin ‘Paternalism’ (1972) 56 The Monist 64).
In the COVID-19 era, most paternalistic policies are an example of impure paternalism given the mandatory nature and that only 0,5% of the population are at risk of death from SARS-CoV-2 (see Dr Willem van Aardt ‘Can government mandate the COVID-19 vaccine against your will? A discussion on international human rights law’ 2021 (July) DR 12).
The quandary with paternalism that violates fundamental human rights
Paternalist policies are controversial principally because they are premised on the notion that the government is better able to make decisions in a person’s interests than the person themselves. Such policies offend a fundamental tenet of liberal societies, namely, that the individual is best placed to know what is in their interests (Bill New ‘Paternalism and public policy’ (1999) 15.1 Economics & Philosophy 63).
Respect for human dignity implies free will at its core. From the recognition of human dignity descends the right and the freedom to make one’s own decisions. By imposing choices based on what someone else thinks are good for a person, legal paternalism violates the equal dignity of all human beings and, given the interdependence and indivisibility of human rights, adversely affects all human rights. Therefore, as Immanuel Kant argues, a government that was established on the principle of regarding the people in the same way that a father regards his children’s welfare, a paternal government, is ‘the worst despotism we can think of’ and a constitution that ‘“subverts all the freedom of the subjects, who would have no freedom whatsoever” … The sovereign who “wants to make people happy in accord with his own concept of happiness…becomes a despot”’ (Immanuel Kant ‘On the proverb: That may be true in theory but is of no practical use’ (1793) in Perpetual Peace and Other Essays (Hackett Publishing Company 1983)).
‘Respect for a person’s autonomy is respect for his unfettered voluntary choice as the sole rightful determinant of his actions except where the interests of others need protection from him’ (Richard J Arneson ‘Joel Feinberg and the Justification of Hard Paternalism’ (2005) 11 Cambridge University Press 259). The reason why the government should not interfere in principally self-regarding affairs is not that such meddling is self-defeating and probable to cause more harm than it prevents, but rather that it would itself be an injustice and a violation of the private sanctuary, which is every person’s self. This is true irrespective what the calculus of harm and benefits might show (Enrico Bertrand Cattinari ‘The Doctrine of “Implied Limitations” of Fundamental Rights: An Argument Against Legal Paternalism’ University of Leicester School of Law Research Paper No 15-18, 2015, Joel Feinberg (op cit)).
In his celebrated essay ‘On Liberty’, John Stuart Mill asserts that ‘Society can and does execute its own mandates: And if it issues wrong mandates instead of right, or any mandates at all in things with it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself’ (John Stuart Mill On Liberty and Utilitarianism (New York: Alfred A Knopf 1992)).
The South African Constitutional Court (CC) held that where there is a limitation to a right fundamental to a democratic society, a higher standard of justification is required; so too, where a law interferes with the ‘intimate aspects of private life’ (S v Makwanyane and Another 1995 (6) BCLR 665 (CC) at para 109).
A further related argument against legal paternalism is that there is no guarantee that it will improve people’s health and welfare; indeed, it may make it worse. Mill argues that ‘the strongest of all arguments against the interference of the public with purely personal conduct, is that when it does interfere, the odds are that it interferes wrongly, and in the wrong place’ (Mill (op cit)).
In the case of the COVID-19 lockdowns, unintended consequences included economic devastation, hunger, disruption in education, significant spikes in suicides and mental health issues, and increased domestic violence (Brad Polumbo ‘4 Life-Threatening Unintended Consequences of the Lockdowns’ (https://fee.org, accessed 6-12-2021)).
Justification for paternalistic policies
When and to which extent can the state restrict the fundamental freedoms? What kinds of conduct may the legislature make criminal without infringing on the moral autonomy of individual citizens? Is there a limit to legal paternalism that the state must not exceed?
Mill (op cit) presents that which is probably the best answer to this question: The ‘harm principle’. This ‘principle protects only self-regarding acts, carving out a space for freedom which … should be protected from external interference. Other-regarding acts, however, may be subject to control by others’ (Jovan Babic ‘Self-Regarding/Other-Regarding Acts: Some Remarks’ 2006 (5) Prolegomena 193). Mill writes: ‘The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his body and mind, the individual is sovereign’ (Babic (op cit) 195).
COVID-19 poses a risk of death to approximately 0,5% of the population that is categorised as vulnerable. All vulnerable people have access to COVID-19 vaccines and can take other effective precautionary measures to reduce their risk of infection, such as self-isolation, prophylactic medication, and protective apparel. Considering the aforementioned, and the fact that the theory of symptomless spread has been debunked in toto the argument that healthy people pose a risk to vulnerable groups and, therefore, need to be subjected to paternalistic policies that infringe a wide array of fundamental human rights and freedoms such as freedom of movement, freedom of religion, freedom to bodily autonomy is highly questionable (https://covid.cdc.gov and Shiyi Cao, Yong Gan, Chao Ang, and Max Bachmann et al ‘Post-lockdown SARS-CoV-2 nucleic acid screening in nearly ten million residents of Wuhan, China’ (www.nature.com, accessed 6-11-2020)).
Limitation of fundamental human rights
In terms of the thesis of ‘“implied limitations” of fundamental [human] rights, the only permissible legal limitations to human rights are those necessary for their existence as a whole’. The theory of ‘implied limitations’ is a consequence of the inviolability and interdependence of fundamental human rights. ‘If the fundamental right could be restricted for reasons other than their overall protection – for example for a general social benefit … – they would no longer be inviolable’ (Cattinari (op cit)).
Fundamental rights are constitutively inalienable; they exist necessarily, inherent in every person, and cannot be taken away from them. Therefore, they cannot be limited for a reason other than their overall protection. This does not imply, of course, that their exercise does not meet some limits, but such limits cannot find their justification outside the system of fundamental rights itself (Cattinari (op cit)).
Paternalistic policies can consequently only be lawful if the policy strictly complies with the derogation and limitation provisions set out in art 4 of the ICCPR and s 36 of the Constitution. It must, therefore, be shown that the paternalistic policy or law in question serves a ‘constitutionally-acceptable’ purpose and that there is sufficient proportionality between the harm done by the law, action or omission and the benefits it is designed to achieve. In S v Makwanyane, the CC adopted the following approach to the limitation clause: ‘The limitation of constitutional rights for a purpose that is reasonable and necessary in a democratic society involves the weighing up of competing values, and ultimately an assessment based on proportionality.’
The principle of proportionality prescribes that all statutes that affect human rights should be proportionate or reasonable. ‘The proportionality analysis examines the following set of sequential questions once a prima facie infringement of a fundamental human right has been found. First, does the infringing [paternalistic] policy pursue a legitimate aim (legitimacy)? Second, is the [paternalistic] policy suitable and rationally connected to the fulfilment of policy goals (adequacy or efficacy)? Third, is the infringing [paternalistic] policy necessary and the least restrictive option (necessity)? Fourth, do the benefits of the [paternalistic] policy measures outweigh the cost?’ (proportionality ‘strictu sensu’ or ‘balancing’) (Dr W van Aardt ‘The Mandatory COVID-19 Vaccination of School Children: A Bioethical and Human Rights Assessment’ (2021) 12 Journal of Vaccines & Vaccination).
Conclusion
Paternalism, as such, is not incompatible with the legal order of a constitutional state, but in such a legal order, a paternalistic purpose for the greater good cannot be considered a sufficient reason to restrict personal freedom. Fundamental human rights may only be restricted in line with international and national derogation and limitation provisions.
Where governments interfere in individuals’ autonomy, it is important that paternalistic policies should be subjected to rigorous scrutiny to determine their legitimacy, efficacy, necessity, and proportionality. If the limitation of rights does not serve the purpose of and contributing to a society based on human dignity, equality, and freedom, it cannot be justifiable.
As espoused in the United Nations (UN) Vienna Declaration and Programme of Action: ‘Human rights and fundamental freedoms are the birth right of all human beings; their protection and promotion [are] the first responsibility of Governments’. Governments do not have the right to decide when people are entitled to enjoy their fundamental human rights. Governments only duty is to protect fundamental rights and freedoms (Vienna Declaration and Programme of Action (https://www.ohchr.org, accessed 6-11-2021)).
Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is an Admitted Attorney of the High Court of South Africa, Admitted Solicitor of the Supreme Court of England and Wales and an Extraordinary Research Fellow at North-West University – Research Unit Law Justice and Sustainability Potchefstroom Campus.
This article was first published in De Rebus in 2022 (Jan/Feb) DR 43.
