The former Supreme Court justice replies to a recent Prospect piece on liberty, law and the lockdown from Thomas Poole of the LSEby Jonathan Sumption / May 26, 2020 / Leave a comment
Professor Poole accuses me of “facile contrarianism” for suggesting that it “is our business, not the state’s, to say what risks we will take with our own health.” The essence of his argument is in his last sentence: “only law can guarantee the social structures that make free life possible.” Of course that is true, and I am not “blind” to the fact.
But it does not follow that all laws are admirable, or that every policy dilemma calls for a legal solution. Nor does it follow from the fact that some legal constraints make free life possible, that they all do. There is something endearingly absurd about the argument that house imprisonment by law is necessary for freedom.
Law is an instrument of state coercion. Unless one believes in the absolute state, coercion must be justified. I do not believe and have never said that liberty is an absolute value. But it is an important value whose partial abolition has not been justified in this case.
I understand the professor to believe that the lockdown is justified because the state has a “cardinal duty to ensure the safety of the public.” Whether that is so must depend on: (i) how serious the threat to public safety is; (ii) whether the lockdown is calculated to reduce or eliminate it; and, (iii) whether the collateral damage done by the lockdown outweighs the alleged benefits. Professor Poole says that most citizens are incompetent to assess the scientific evidence. This looks like a suggestion that we must accept the government’s assessment of these matters.
One difficulty about this is that the problem is only partly scientific. It is mainly political. It is a political question how many additional deaths are serious enough to justify the abrogation of liberty. It is a political question whether the alleged cure is worse than the disease. Whether the moral, physical, cultural and economic harm resulting from the lockdown is worse than the loss of life resulting from the virus is a complex value judgment which we are all entitled to make. The physiological effects of the virus or the lockdown are scientific questions, but the choice between conflicting scientific views about them must be made by politicians.
The truth is that the loss of life resulting from this virus is very small except…