What the Pandemic Has Taught Us About Law: Part 1

The law has played a major role in governments’ responses to the Covid-19 pandemic. Whether it has taken the form of legislation, orders or regulations with legally enforceable status, or recommendations or advice, treated as if it were law, governments’ intention with these laws has been to force major changes in behaviour. Many of these laws, formal and informal, have also resulted in confusion, frustration and anger. In this post and in my next, I consider how governments’ use of law has met our expectations about the characteristics of public law in a democratic system. Here I discuss the characteristics law should have to elicit compliance. Next time, I examine examples of pushback against pandemic laws and the role pandemic laws may have played in that.

Laws in a democratic system are a means by which the state controls the population, distributes benefits, improves the conditions of certain segments of the population or of the population as a whole, establishes standards of expected behaviour, identifies the moral beliefs governing the state while protecting the moral beliefs of those who do not share them, affects the relations with other states and, crucial here, responds to crises. As Hadfield and Weingast state, law has a “fundamental policy role”, where

law is a purposeful vehicle for shaping behavior to achieve desired ends. Many mechanisms and institutions shape behavior, of course: social norms guide conduct in all human societies, for example. What makes law of interest to economists and positive political theorists, however, is the capacity for deliberately changing behavior patterns in order to achieve normative goals such as economic growth, the security of individual freedoms, or the redistribution of wealth. (Gillian K. Hadfield and Barry R. Weingast, “What is Law? A Coordination Model of the Characteristics of Legal Order” , pp. 473-474)

For us, now the goal is to contain an ever worsening pandemic.

There is widespread agreement that law must satisfy several criteria if it is to meet the requirements of the rule of law as being properly promulgated and if it is to be effective. Some of these criteria are inherent in the law itself, while others are more relevant to how it is perceived by those subject to it and others still are external factors.

The basic understanding of the characteristics of a legitimate law is reflected in a teaching module in a program the Law Society of Western Australia (“Law Society module”) ran in 2015:

For a law to be effective it must be
1. Known to the public
2. Acceptable in the community
3. Able to be enforced
4. Stable
5. Able to be changed
6. Applied consistently
7. Able to resolve disputes (Law Society module, p.1)

Hadfield and Weingast maintain that a legal order must have the following characteristics: generality or universality, stability, openness, impersonality, promulgation, prospectivity, clarity, non-contradiction, feasibility and “congruence between rules as announced and rules as applied” (Hadfield and Weingast, p.500; also p. 475).

Law is constituted by positive rules enacted by a properly instituted legislative body or as a result of laws that were enacted by a properly elected legislative body (regulations are issued by the executive [for example, the cabinet] under laws that have been passed by the legislature). Government in this sense is a centralized body; in Canada that means federal, provincial or territorial and coordinate bodies of First Nations. These rules must be announced publicly, whether in a particular publication, such as the Ontario Gazette, or in some other way. They must be available to the public; while this was previously in codes or statute books, it is more likely laws will now be found on the internet on a government laws website. Law may also come into effect through judicial decision-making, as in the common law rather than codified law, although this is of less interest in the context of this post. They must be enforceable by an independent adjudicative body, such as courts or tribunals; however, enforcement may be delegated to subordinate bodies with authority or even private actors who must rely on others for enforceability (for example, grocery stores must deny access to people who do not wear masks and must decide whether people satisfy recognized exemptions). Despite such “downloading”, governments possess the only real authoritative control over the use of coercion. Regardless, the processes of enforcement and resulting sanctions must be seen to be fair and not arbitrary.

Despite the focus on a centralized authority that can enforce laws and impose penalties, the rules that apply in certain subsets of the political entity may also enforce behaviour and be more important to those subject to them than those emanating from a centralized authority. These may constitute law (the by-laws governing reserves), rules that might as well be “laws” (such as those that govern closely-knit religious sects) or internal or private rules that may result in recognized sanction (such as union by-laws, providing that the failure to observe them may result in expulsion from the union and possibly loss of employment). Thus Hadfield and Weingast argue that “we can achieve legal order exclusively on the basis of decentralized enforcement, without any centralized coercive authority” (Hadfield and Weingast, p. 472). (I note here that Hadfield and Weingast develop a highly sophisticated model of what they call coordinated enforcement that constitutes a legal order, despite not possessing a centralized enforcement authority, and that might predate the development of a centralized authority; it is not my intention to pursue that here, but much of what they describe as decentralized or coordinated enforcement and the means by which this is achieved continue to exist within a centralized authority.)

Thus Hadfield and Weingast suggest non-centralized enforcement can take the form of “voluntary compliance”, “individual punishment” or “collective punishment”; in the last case, groups may address the issue of compliance by not dealing with the person who has strayed (Hadfield and Weingast, p. 473). Even under a centralized system, there are other ways in which compliance with law is achieved, although there may not be actual legal authority to impose sanctions (see my April 21, 2020 Slaw post on this issue, “The Relationship Between Law, Private Enforcement, Social Pressure and ‘Snitching'” here).

Laws should be applicable to everyone in the same way or as clearly set out in the legislation. The first phrase of these two relates to one of the characteristics of the rule of law: no one is above the law. The second phrase recognizes that laws — or their provisions — may apply to some people, but not to others (thus there may be laws that apply to certain age groups, but not others, to people in certain professions but not others, to employers with a minimum number of employees, but not to those with fewer employees, and there are a host of other such distinctions in law); however, the laws must be explicit about these distinctions and about who is subject to them. In both of these situations, law may be described as “universal”, although that term applies within defined parameters.

Whether the law applies to everyone or to a particular segment of the population (or only to certain organizations, for example), the conduct the law requires must be conduct in which those subject to the law can engage, or they can avoid if it is prohibited by the law (Lon Fuller’s “possibility” or Hadfield and Weingast’s “feasibility”).

In today’s lawmaking, there is often an opportunity for public participation in the development of the law through open legislative hearings or through an invitation to the public to respond to policy papers that have been distributed for discussion, for example; this process highlights how lawmakers can learn how the proposed law might affect certain segments of society. There remains, nevertheless, the likelihood that certain segments who do not participate in the public process have an impact on the eventual law (we can think of this as lobbying behind closed doors or even casual conversations on the golf course).

Laws must be unambiguous: they must set out the expectations they impose and what happens if those expectations are not met. People must know how to behave to conform to law. Unfortunately, laws are too often ambiguous, badly drafted, making obedience to their requirements and subsequent enforceability more difficult. In such cases, adjudicators may interpret the law in a way not intended, necessitating subsequent changes to the law.

I argue that beyond the criteria for “formal” legitimacy, laws should be “fair” and must be seen to be fair. Fairness and the perception of fairness, however, are perhaps the most difficult characteristics to satisfy, since there are many factors that will make it more difficult for people to obey the law or to defend themselves if they are accused of breaking it. Alan Macfarlane points out that those subject to a law need to believe it is there to protect them (“What Makes Law Effective?“, p.2). As he says, “what makes laws effective is the way in which people feel it runs with their interests and not against them” (p.5).

The reality, though, is that the law is often not fair, although the unfairness may lie less in the actual law (or face of the legislation) than in some external factor that does make people believe the law is against them. Some people are in a better position to convince government to make changes in the law in their favour. Some people may have greater difficulty in accessing dispute resolution mechanisms than do others. Penalties for breaking the law may be harsher for some than for other lawbreakers, and sometimes the same conduct results in charges for breaking the law when it doesn’t for others. The police treatment of the insurrectionists storming the US Capitol in Washington, DC, on January 6th, quickly drew comparisons with how police treated those marching in Black Lives Matter protests this past summer. Fairness and the perception of fairness are vulnerable when government is using law as a blunt instrument to counter a pandemic.

Sometimes the law fails to keep up with societal changes. The cliched example is that juries stopped convicting people accused of stealing a sheep, including a lamb, or convicted them for some lesser crime, since the penalty for stealing a sheep was hanging (hence “I might as well be hanged for a sheep as a lamb”). (On this, see the very illuminating — for me, at any rate — website, Proceedings at the Old Bailey, London’s Central Criminal Court, 1674 to 1913). More recently, Dr. Henry Morgentaler was acquitted by a jury of carrying out abortions; Quebec’s provincial court reversed the acquittal and he was tried again, again with acquittal by the jury. Subsequently, the power of the court to reverse a jury acquittal was removed. (A thorough analysis of these circumstances can be found in Bernard Dickens, “The Morgentaler Case: Criminal Process and Abortion Law” here.)

In speaking of pre-centralized systems, Hadfield and Weingast propose that law does not have to be deliberate, but can arise out of repeated informal interactions. Borrowing this notion in a different context, I suggest that one way deliberate law changes is that repeated practices can reveal the inadequacy of law because in its current form, it is out of touch; for example, social conditions or people’s expectations about appropriate behaviour may have changed or the emergence of new technologies may make the existing law inapplicable or at least awkward to apply. Under these circumstances, the repeated practices may not themselves form a new legal order but rather inform the development of the existing legal order.

The characteristics that I have described actually merge two important aspects of law (writ large, rather than “a law”): the more or less objective aspects of law (such as whether it has been promulgated according to the required procedures) and the more subjective aspects (such as whether it is responsive to societal change or, more significantly, whether people should follow it). The reasons people might not follow the law is at the heart of my next post, although the question is more complicated than that. Andrei Marmor and Alexander Sarch explain the dual nature of law in “The Nature of Law“:

First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated.

How a law is perceived — whether it satisfies the requirements of law — can be said to constitute an important and even crucial aspect of “the rule of law”, but the law and the rule of law are not the same thing. Hadfield and Weingast, for example, argue that “law” is not assessed by whether it is “good or bad”. “The rule of law”, on the other hand, is “a normative ideal”. (Hadfield and Weingast, p. 500) I have described a legitimate or acceptable law as merging the non-normative characteristics of law and some of the normative characteristics of the rule of law because I’m speaking of law in a democratic system; laws that exist in non-democratic systems may exhibit all or some of the non-normative characteristics of law as described here, but not the normative characteristics and thus are a component of rule by law and not rule of law. Hadfield and Weingast also do not distinguish between law and the rule of law, although for different reasons. Importantly, however, they refer to theorists’ explanation of why certain characteristics are necessary as part of an acceptable law; these characteristics are relevant to how government actions during the pandemic raise questions about whether the law will be sufficiently accepted (even if obeyed by most people):

Both Fuller (1964 [The Morality of Law]) and Raz (1977 [“The Rule of Law and Its Virtues”]) ground several of their arguments for why law, or the rule of law, must possess certain characteristics on an informal model of human behavior. Both presume, for example, that, as a practical matter, people cannot plan on the basis of rules that they cannot discover or ones that they do not expect to govern the application of future penalties and therefore conclude that legal rules must be stable, publicized, and largely prospective. (Hadfield and Weingast, p. 501)

The questions about what is effective or acceptable law and how positive laws interact with the rule of law in a democratic system are large questions; here I’m specifically concerned with laws (including orders and regulations and recommendations or advice that do not have the status of “law”) writ small against a background of the normative elements of the rule of law and with their effectiveness in addressing Covid-19’s scope and somewhat erratic journey during the current pandemic. Despite efforts to control people’s behaviour to minimize contact with each other, for example, the laws and recommendations about gatherings do not seem to have been as successful as government would like. As Anthony Allott noted forty years ago in “The Effectiveness of Laws” (see here),

There has been a natural tendency on the part of the lawmakers to put the blame for such a rejection of laws on those who should comply with them. If only, they may think, people would realize that obeying laws is essential for the smooth functioning of society and the achievement of the social goals set by those who appear to have command of that society! (Allott, p. 229)

We have seen that reasoning across the country and elsewhere and I do believe that much of the problem lies in the unwillingness of too many people, albeit not a majority by any means, to ignore strictures about wearing masks or not gathering together. This pattern has occurred across Canada and in other countries and it is why we see an increase in Covid-19 cases following major holidays. Allott argues the problem lies in the laws, rather than those who are subject to them. While I would argue the fault lies with members of the public, to some extent and perhaps to a significant extent, I would also argue that lawmakers are culpable. In some cases, they have made laws that make it easier for people to avoid them or to rationalize their non-lawabiding behaviour. In other cases, their own behaviour has highlighted unfairness, particularly as people develop “Covid fatigue”. I should add here that there may be less tolerance for the inability of lawmakers to respond to the pandemic than there was at the beginning, something I discuss in my next post.

There are, as Allott suggests, two ways in which people may be in non-compliance with the law: intentionally or accidently (Allott, p. 235). We can see both in the pandemic, but we might ask whether the reasons for either intentional or accidental non-compliance lie in the laws or in those subject to them. Allott points out that laws are no more than persuasion, since people can choose to disobey laws either because they believe they will not be caught or because they are ready to accept the consequences, likely in the latter instance because they think the benefit of non-compliance is greater than the penalty; sometimes, the benefit may be immediate (hence the phrase, “the cost of doing business”) or it may be long-term (my objective is important enough that I am prepared to engage in civil disobedience).

Laws in the pandemic run contrary to major principles that otherwise govern our societies, such as freedom of association or of movement. Some laws turn normal practices on their head: before the pandemic in western societies wearing masks suggested something nefarious, such as robbing a bank or taking part in a violent protest, while today we are all required or expected to wear masks under certain conditions, including when we’re in a bank. (Of course, in other societies, wearing masks has long been an accepted and desirable practice and when individuals from these countries have worn them in Canada, they have sometimes been viewed with suspicion or at least curiosity). Put another way, laws during the pandemic have been intended to bring about a swift transformation of the usual norms and practices in society, something that generally would be processed over a longer length of time or in a more restricted context (such as gradual additions to protected grounds under human rights legislation, which usually — although not always — follow a relatively widespread acceptance or “tolerance” of the new ground). To some extent, these laws seek to restructure the society, ostensibly for the short term, but in some people’s minds, merely setting the stage for changes in the future.

In discussing what he calls “programmatic laws” enacted by colonialists and designed to bring about major restructuring of society (far beyond the pandemic laws, I hasten to add), Allott explains,

the major reason for failure due to non-compliance is resistance caused by the unacceptability of the law; and this unacceptability is traceable mainly to the lack of an appropriate consensus. There are two major arguments for a consensus approach to law-making: the first is a pragmatic one, that this is the best way to get effective laws which people will comply with; the other is a moralistic one, that it is wrong in principle to impose laws on people against their will, if at the same time one subscribes to a “democratic” thesis of political organization. (Allott, p. 242)

From a different perspective and one that is perhaps especially relevant in a pandemic, Duncan Ivison asks “Why should we obey the law?” (see here). The duty of obedience stems from a belief that the laws “are … constitutive of a reasonably just, mutually beneficial, collaborative society”. Not everyone agrees that all laws are that, but does it mean that everyone is justified in disobeying any law they disagree with: the answer is “no”. It may depend on how the law treats you, in its substance or its application, or in whether the law is in large measure destructive of civil society. Thus “[i]t is a condition of genuine civil disobedience … that you must be willing to suffer the consequences of disobeying the law in the hope of transforming the views of your fellow citizens. You need to take the public good to heart, and not simply your own particular interests.” (Ivison)

What can all this tell us about why, particularly, but not only, after the first harmony of what we have since learned is the highly inaccurate “we’re all in this together”, some people have (mostly) intentionally flouted the laws intended to contain the pandemic or have followed them grudgingly, perhaps looking for ways “around” the rules that in their mind still satisfy them. And what can it tell us about why at least in part a result of that, we have not been able to contain the pandemic? The answer lies, I believe, in a combination of the inadequacy of the laws in some instances and in the response of too many citizens (again, not a majority) to accept laws that seek to make major changes to how we function in our personal and public lives. And this includes not only ordinary citizens, but also those who may be responsible for making the laws that constrain others.

In my next post, I discuss the legal (defined broadly) response to the pandemic and how its weaknesses may in part have encouraged people to act outside the laws or to challenge them, using several examples: apparently arbitrary enforcement, mandatory mask policies, (partial) lockdowns, travel recommendations, uneven changes in the law and more informal rules and preparation for school attendance. I add, as I discuss in my next post, I’m not suggesting that the laws — and how they have been communicated — are fully to blame; however, it is, I believe, important to have some appreciation of the role they have played.