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COVID-19: Illiberal Restrictions May Become Too Liberal

Blogpost on COVID-19 and illiberal restrictions by Prof. Dr. Anja Matwijkiw, U.S. Fulbright Distinguished Chair of Public International Law, Faculty of Law, Lund University & Raoul Wallenberg Institute of Human Rights and Humanitarian Law

Undoubtedly, the COVID-19 pandemic casts a different light on recent laws in various European countries that practice value politics to conserve the cultural status quo. One example is Denmark’s 2018 law L 80, which contains a provision for a constitutional ceremony that forms an integral and mandatory part of the nationalization process of new citizens and which requires that the participants as applicants “confirm Danish values” [1] . If they refuse, they fail to show the required respect for our way.

On analysis, law L 80 merges with another law that also went into force in 2018, namely the so-called “burqa ban” (cf. law L 219 § 134 c) [2]. Subject to the exception of “a recognizable purpose”, this law prohibits the use of full-face Islamic veils like the burqa or the niqab in the public space and does so partly because of the loss of transparency that constitutes a value in Danish society.

The mentioned merger follows in the wake of the fact that, if conducted properly, the constitutional ceremony entails that: “One of more representatives from the municipality in connection with the ceremony meet face to face with the participants and shake their hand”. [3]

However, rather than critically reconsider law L 80 on account of the risk of coronavirus transmission, the Danish Ministry of Health decided, on 12 March of 2020, to suspend any constitutional ceremony until further notice. [4]

Provided medical experts are correct in their prediction that the coronavirus is here to stay and that finding a cure and a vaccine is a global priority, any domestic law that is contrary to the goal of preventing the spread of the deadly COVID-19 should be repealed unless, of course, continued consideration of Danish values can be seen as being just as important – to us. However, this is not the case from an objective harm perspective which, for the same reason, can and ethically should function as a strategy for value adjudication.

Too Liberal?

From a purely philosophical perspective, the paradox is that illiberal measures may be too liberal.

Thinking things through, however, laws that are counterproductive in the context of the global COVID-19 pandemic may produce liberal outcomes without illiberal effects, if repealed. Although perhaps the unintended consequence for strong supporters of Danish value politics, such as former Minister of Integration Inger Støjberg, respect for Muslim women’s equal human rights would follow from the relevant decision.

However small the minority of Muslim burqa-wearers may be, however exotic their way of not touching members of the opposite sex appears for those with the political power to determine the scope of religious pluralism, the female minority’s religious freedoms are at stake. Therefore, if laws like law L 219 and law L 80 are repealed, the decision would also accommodate the United Nations Human Rights Panel’s criticism of France’s burqa ban which is the historical precursor and model for Denmark’s [5].

Concerning law L 80 alone, the rationale also extends to an agreement with U.S. President Trump’s statement, on April 4 of 2020, that shaking hands is “a custom of the past” because of its instrumental role in any virus transmission, be it the flu or the coronavirus [6]. The Prime Minister of the United Kingdom, so various commentators and observers of the COVID-19 pandemic have argued, had to learn this lesson the hard way. Certainly, Boris Johnson has admitted that he “shook hands with everybody”. [7]

A trivial-but-true conclusion is not just for an individual statesman who may have wanted to demonstrate that the situation was not as serious as the experts claimed. It also applies to each and every one of us who are currently trying to make a constructive and proactive contribution by practicing social distancing and, at the same time, hoping to be able to maximize our contribution for safety’s sake, for example, with the use of a face mask.

The current discrepancy between the market supply and demand makes this challenging. Meanwhile we are (re-)discovering errare humanum est.

To err is human.

But, a concession to fallibilism may very well help us to self-correct our responses.

One example is Sweden’s former Prime Minister Carl Bildt’s support of voluntary measures to combat the spread of the coronavirus, arguing that Swedish people have “a genetic disposition for social distancing” [8].

Setting aside mutations as plausible explanations for the increase in infections, Sweden soon opted for less of a reliance on (Swedish) human nature in favor of a more restrictive approach.

To be able and willing to learn and (re-)adjust our responses to the “[t]hick darkness”, to use Pope Francis’ description of the coronavirus, is what really matters for humanity [9]. It is unfortunate that it may take a tragedy of epic proportions, an event like the global COVID-19 pandemic, to realize that facts should trump proposals, propositions and policies that are likely to add rather than subtract from harm.

‘Globalization Has Made Us Vulnerable’

If possible, i is even more unfortunate that the predicament may repeat itself at the very root of the problem. According to the WHO, we only have ourselves to blame for the situation.

Why? Because it is globalization that has made us all vulnerable. It is the species, homo sapiens, that has created conditions that “stressed” and overstretched our own (global) way of life [10]. Humanity is both the causality and the casualty.

While the coronavirus itself is not man-made, we nevertheless seem to have undone one or more of the environmental cum existential parameters that, so far, has kept the human world in balance.

The analogy to Milton Friedman’s “impersonal” market forces is striking, although his type of laissez-faire capitalism also forms part of The Evil that we are now being collectively punished for – in the form of mass deaths across the globe.

The species sinned against sustainability and interdependency. Regulatory limits that cannot be crossed, at least not without harmful consequences. Despite warnings like global climate change, we continued a business-as-usual model in pursuit of our wants and with economic freedom as the vehicle.

– Apparently, it is ‘Back to Basics’, being willing to put the shared interests of humanity (including basic human needs) first or a dramatic Farewell to Reason that awaits us. If so, we no longer have to opportunity to think things through in good time.

Notes:

[1] National Parliament, Lov om ændring af lov om dansk indfødsret og lov om danskuddannelse til voksne udlændinge m.fl. (law L 80 as adopted on 20 Dec. 2018), https://www.ft.dk/ripdf/samling/20181/lovforslag/l80/20181_l80_som_vedtaget.pdf; Fie Dandanell, Idag blev første håndtryksceremoni afholdt: Jeg ville have givet hånden som tak alligevel”, Berlingske, 17 Jan. 2019,  https://www.berlingske.dk/samfund/i-dag-blev-foerste-haandtryksceremoni-afholdt-jeg-ville-have-givet-haanden.

[2]  National Parliament, 3. Behandling af L 219: Om et tildækningsforbud. Endelig vedtagelse 2017-18 L 219 [3. Reading of L 219: Ban to cover. Final adoption], 31 May 2018, https://www.ft.dk/ripdf/samling/20171/lovforslag/l219/20171_l219_som_vedtaget.pdf; Anja Matwijkiw & Bronik Matwijkiw, International Relations Begin at Home: A Humanitarian Learning Lesson from the Kingdom of Denmark, 15/1 INT’L STUD. J. 103 (2018); Anja Matwijkiw & Bronik Matwijkiw, Illiberal versus Liberal State Branding and Public International Law: Denmark and the Approximation to Human(itarian) Rightlessness, 18 GLOBAL COMMUNITY YILJ 207 (2019).

[3] Ritzau, Regeringen er klar med håndtryksceremoni for statsborgerskab, Avisen-DK, 31 Aug. 2018, https://www.avisen.dk/regeringen-er-klar-med-haandtryksceremoni-for-statsb_513699.aspx. [Author’s emphasis].

[4] Ministry of Health, [E]ndeligt svar på spørgsmål 34, 12 Mar. 2020, https://www.ft.dk/samling/20191/lovforslag/l133/spm/34/svar/1642199/2162549.pdf.

[5] Staff Writer, UN panel condemns French ban on full-face veils as violation of human rights, France 24, 23 Oct. 2018, https://www.france24.com/en/20181023-france-un-ban-full-veil-human-rights.

[6]Trump, “There’s going to be a lot of death” in coming weeks, Live CNN-Newsroom, 4 Apr. 2020, https://www.youtube.com/watch?v=OBWDNY2GiSA.

[7] Staff Writer, I shook hands with everybody, The Guardian, 27 Mar. 2020, https://www.theguardian.com/world/video/2020/mar/27/i-shook-hands-with-everybody-says-boris-johnson-weeks-before-coronavirus-diagnosis-video.

[8] Haven Orrechio-Egresitz, Sweden had resisted mandatory social distancing measures. That changed on Wednesday, Insider, 2 Apr. 2020, https://www.insider.com/sweden-a-scandinavian-hold-out-finally-set-distancing-guidelines-2020-4.

[9] Jason Horowitz, ‘We Find Ourselves Afraid. The Pope Confronts Coronavirus, New York Times, 27 Mar. 2020, https://www.nytimes.com/2020/03/27/world/europe/coronavirus-vatican-pope-francis.html.

[10] Mohammed Jamjoom, WHO’s Dr. Mike Ryan: Coronavirus vaccine ‘at least a year’ away, Al Jazeera, 27 Mar. 2020, https://www.aljazeera.com/programmes/talktojazeera/2020/03/dr-mike-ryan-coronavirus-vaccine-year-200325093707677.html.

 

Best regards,

Prof. Dr. Anja Matwijkiw, U.S. Fulbright Distinguished Chair of Public International Law, Faculty of Law, Lund University & Raoul Wallenberg Institute of Human Rights and Humanitarian Law

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