‘There comes a time in human history when the man who says 2 plus 2 equals 4 will be sentenced to death.’ Camus, The Plague, (1947).
There is a famous book by the Portuguese novelist José de Sousa Saramago called Blindness (1989) where a blindness epidemic takes sway and blindness becomes a communicable disease. The effect is an escalating sense of panic. Individuals are quarantined and dehumanized. Human nature descends to Hobbisean farce and brutality. The concepts of due process, fairness, legality, rule of law and human rights go out the window. Inept authorities make mistakes. Asylums are created for those quarantined and descend into murder and chaos. An armed clique gains control. Social services and the rule of law break down. I wait patiently with a gaggle of elderly housewives and house husbands outside Boots for the ration of one hand sanitizer per day. Sound familiar?
Now the novel Blindness is a parable or a fiction but most relevant. Real or not, any perceived state of public emergency creates an ever more random universe. Hurricanes in the United States or police brutality riots often occasioned by urban disenchantment or food shortages can lead to barbarism, criminality and looting and pillaging, with authorities and speculators often in an uneasy coalition.
My hero Albert Camus, who for all sorts of reasons is right back in focus, in his seminal The Plague (1947) uses the historic plague effecting Oran to emphasize the need for humanism, engagement, heroism and community in difficult times and, above all, the rule of law and a respect for human dignity.
History is, in fact, littered with destructive plagues. The most famous, exported by the Mongol warriors, was the Black Death which devastated Europe in 1347. More recently, the 1918 influenza is the nearest comparator. It is a noticeable matter that more people died in that epidemic (including the legendary Austrian painter Egon Schiele) in the immediate aftermath of the First World War than the entire war itself; some 40 million casualties.
Of course, the reason for such mass deaths then was a lack of vaccination and the overall ratio of death and infection was considerably higher than in today’s coronavirus. So one should be initially cautious; the ratio will be nowhere near as high as in those historic pandemics.
Let us avoid shock doctrine and overreaction. Judgment and the facts are necessary. But in our present universe, it is increasingly difficult to disentangle fact, expertise and what is really going on.
Panic spreads and when the rule of the mob takes hold, then all can rapidly descend into chaos. That is what happened in Blindness and in our increasingly emotional age, reason can be abandoned.
Camus shows in The Plague the way in which authorities seek to downplay a situation when they have lost control. What do they really know about the morphology and trajectory of that which is going to happen? What are the predictable or unpredictable in an increasingly random age?
Meanwhile, there are human rights issues of immediate and long-term concern to the legal profession:
- Acts of Parliament designed to confront an immediate emergency can become embedded and spiral out of control, like counter terrorism legislation - certainly if they last for at least two years. So beware of restrictions of Article 4 rights such as liberty or movement where powers of arrest and detention are extended if the elderly do not self-isolate or anyone does not self-isolate. In fact, the very phrase itself is problematic and techno speak, like ethnic cleansing or military intelligence, a contradiction in terms. Self-isolation suits a silo bubble of social isolation and state authorities dealing with people or problems one by one. Extended Article 8 breaches of surveillance or monitoring need to be resisted short term and long term.
- The under-resourced healthcare system will now have to make life and death decisions; ethically and legally problematic under Article 2 rights, potentially creating breaches of dignity and subjecting people to inhumane and degrading treatment. Article 3 rights are impacted as, in effect, comes a form of social quarantine of the elderly and the infirm. We risk a descent to barbarism, not least due to the effects of privatization and historic under-resourcing.
So let lawyers be vigilant and assess carefully and incrementally how much this is wildly overstated pandering to sensationalism and public hysteria; and, above all, how an overreaction could create permanent legislative and human rights restrictions on human behaviour, thus dehumansing us and creating a transhumanist nightmare.
Back to Camus and the values of legality, rule of law, no panic, moderation and reason. Which is not to say, as Camus the arch rationalist also noted, that there is not a need for measured, proportionate and reasonable responses to confront a defined threat to ordre publique.