Jeremy Bentham speaks…

“Every law is an infraction of liberty”

Professor Jeff King considers ideas of liberty in light of his work mapping legal responses to Covid-19 around the world

Illustration about the Covid-19 pandemic with a rainbow for the NHS, people wearing masks and others protesting with placards about the Covid vaccine and vaccine passports

This article first appeared in issue 8 of Portico magazine, published November 2021.

Jeremy Bentham was a brilliant and pivotal figure in the evolution of British and global public policy. Yet he thought that all talk of natural rights was nonsense. In this quote, taken from his Principles of Legislation, Bentham was saying that laws may be necessary, but they are an evil insofar as they all infringe liberty. Later, he said that he didn’t think a restriction of liberty was something to worry about, provided that it increased general welfare. I disagree with him on both points. I think that laws mostly create and maintain liberty, and that we have human rights and a right to liberty is important among them.

This article first appeared in issue 8 of Portico magazine, published November 2021.

Jeremy Bentham was a brilliant and pivotal figure in the evolution of British and global public policy. Yet he thought that all talk of natural rights was nonsense. In this quote, taken from his Principles of Legislation, Bentham was saying that laws may be necessary, but they are an evil insofar as they all infringe liberty. Later, he said that he didn’t think a restriction of liberty was something to worry about, provided that it increased general welfare. I disagree with him on both points. I think that laws mostly create and maintain liberty, and that we have human rights and a right to liberty is important among them.

This article first appeared in issue 8 of Portico magazine, published November 2021.

Jeremy Bentham was a brilliant and pivotal figure in the evolution of British and global public policy. Yet he thought that all talk of natural rights was nonsense. In this quote, taken from his Principles of Legislation, Bentham was saying that laws may be necessary, but they are an evil insofar as they all infringe liberty. Later, he said that he didn’t think a restriction of liberty was something to worry about, provided that it increased general welfare. I disagree with him on both points. I think that laws mostly create and maintain liberty, and that we have human rights and a right to liberty is important among them.

Exploring Covid-19 laws

We had liberty in mind when we started the Lex-Atlas: Covid-19 project, a global survey of countries’ legal responses to the pandemic. We are trying to learn more about the content of the laws that were adopted, how they were adopted, and what new laws and procedures were brought in to protect human rights and vulnerable groups in general.

Exploring Covid-19 laws

We had liberty in mind when we started the Lex-Atlas: Covid-19 project, a global survey of countries’ legal responses to the pandemic. We are trying to learn more about the content of the laws that were adopted, how they were adopted, and what new laws and procedures were brought in to protect human rights and vulnerable groups in general.

Exploring Covid-19 laws

We had liberty in mind when we started the Lex-Atlas: Covid-19 project, a global survey of countries’ legal responses to the pandemic. We are trying to learn more about the content of the laws that were adopted, how they were adopted, and what new laws and procedures were brought in to protect human rights and vulnerable groups in general.

Illustration of the Covid-19 vaccine bottle and an injection

Where governments abused their powers on the pretext of the pandemic, it tended to be in places that are already known for violating citizens’ rights. But in a large sample of countries, we found no significant adverse relationship between democratic quality and the tendency to implement things such as stay-at-home orders. There was no widespread tendency to suspend bills of rights, to deviate from international human rights treaties, close courts or parliaments, or even to suspend elections.

The inspiration for our project came from an idea in liberal legal circles – mirrored in Bentham’s quote – that public-health measures are an infringement of our civil liberties and, as such, should be accepted to a degree but treated as suspect and removed as soon as possible. Treating lockdown laws, mask mandates and so on as an unquestionable restraint on human rights, civil liberties or freedom seems to me a very irresponsible way of characterising those laws. No one has a right to do things that impose significant harms or risks of harm on other people. No international law or constitution in the world recognises a right to harm others. The grounds for these laws are that we need to stop people from being an instrument for the transmission of this disease that can harm other people. With data gathered from 36 countries so far, we’re seeing that the fear of the courts’ tendency to act in a libertarian fashion and obstruct public-health measures has been unfounded. That’s not to say that some lockdown laws aren’t excessively broad or that there haven’t been instances of what we are calling ‘pandemic opportunism’ – there certainly have been. But it is to say that what is, in my view, a libertarian misreading of the right to liberty, is not widely accepted by courts around the world.

Where governments abused their powers on the pretext of the pandemic, it tended to be in places that are already known for violating citizens’ rights. But in a large sample of countries, we found no significant adverse relationship between democratic quality and the tendency to implement things such as stay-at-home orders. There was no widespread tendency to suspend bills of rights, to deviate from international human rights treaties, close courts or parliaments, or even to suspend elections.

The inspiration for our project came from an idea in liberal legal circles – mirrored in Bentham’s quote – that public-health measures are an infringement of our civil liberties and, as such, should be accepted to a degree but treated as suspect and removed as soon as possible. Treating lockdown laws, mask mandates and so on as an unquestionable restraint on human rights, civil liberties or freedom seems to me a very irresponsible way of characterising those laws. No one has a right to do things that impose significant harms or risks of harm on other people. No international law or constitution in the world recognises a right to harm others. The grounds for these laws are that we need to stop people from being an instrument for the transmission of this disease that can harm other people. With data gathered from 36 countries so far, we’re seeing that the fear of the courts’ tendency to act in a libertarian fashion and obstruct public-health measures has been unfounded. That’s not to say that some lockdown laws aren’t excessively broad or that there haven’t been instances of what we are calling ‘pandemic opportunism’ – there certainly have been. But it is to say that what is, in my view, a libertarian misreading of the right to liberty, is not widely accepted by courts around the world.

Where governments abused their powers on the pretext of the pandemic, it tended to be in places that are already known for violating citizens’ rights. But in a large sample of countries, we found no significant adverse relationship between democratic quality and the tendency to implement things such as stay-at-home orders. There was no widespread tendency to suspend bills of rights, to deviate from international human rights treaties, close courts or parliaments, or even to suspend elections.

The inspiration for our project came from an idea in liberal legal circles – mirrored in Bentham’s quote – that public-health measures are an infringement of our civil liberties and, as such, should be accepted to a degree but treated as suspect and removed as soon as possible. Treating lockdown laws, mask mandates and so on as an unquestionable restraint on human rights, civil liberties or freedom seems to me a very irresponsible way of characterising those laws. No one has a right to do things that impose significant harms or risks of harm on other people. No international law or constitution in the world recognises a right to harm others. The grounds for these laws are that we need to stop people from being an instrument for the transmission of this disease that can harm other people. With data gathered from 36 countries so far, we’re seeing that the fear of the courts’ tendency to act in a libertarian fashion and obstruct public-health measures has been unfounded. That’s not to say that some lockdown laws aren’t excessively broad or that there haven’t been instances of what we are calling ‘pandemic opportunism’ – there certainly have been. But it is to say that what is, in my view, a libertarian misreading of the right to liberty, is not widely accepted by courts around the world.

“Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity”
“Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity”
“Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity”

Tailoring laws to all the people

Throughout the pandemic, lawyers have emphasised that laws need to have exceptions. They should not be simply tailored to the average person, as deemed by economists and health experts, but must also consider vulnerable groups, such as neurodivergent people or communities whose needs are neglected or less well understood. A conditional vaccination policy, such as the UK government’s new law that care-home workers cannot work without being vaccinated, is a case in point. Evidence suggests that the low vaccine uptake within this sector is partly related to the disproportionate number of minority-ethnic people working within it. Some have historical grounds for distrust of the state: the Windrush scandal and Grenfell fire being two graphic recent examples. I believe we must respect these and other reasonable grounds for hesitancy, and listen to people’s concerns rather than simply say: “Get the vaccine or you’re out of work.”

Tailoring laws to all the people

Throughout the pandemic, lawyers have emphasised that laws need to have exceptions. They should not be simply tailored to the average person, as deemed by economists and health experts, but must also consider vulnerable groups, such as neurodivergent people or communities whose needs are neglected or less well understood. A conditional vaccination policy, such as the UK government’s new law that care-home workers cannot work without being vaccinated, is a case in point. Evidence suggests that the low vaccine uptake within this sector is partly related to the disproportionate number of minority-ethnic people working within it. Some have historical grounds for distrust of the state: the Windrush scandal and Grenfell fire being two graphic recent examples. I believe we must respect these and other reasonable grounds for hesitancy, and listen to people’s concerns rather than simply say: “Get the vaccine or you’re out of work.”

Tailoring laws to all the people

Throughout the pandemic, lawyers have emphasised that laws need to have exceptions. They should not be simply tailored to the average person, as deemed by economists and health experts, but must also consider vulnerable groups, such as neurodivergent people or communities whose needs are neglected or less well understood. A conditional vaccination policy, such as the UK government’s new law that care-home workers cannot work without being vaccinated, is a case in point. Evidence suggests that the low vaccine uptake within this sector is partly related to the disproportionate number of minority-ethnic people working within it. Some have historical grounds for distrust of the state: the Windrush scandal and Grenfell fire being two graphic recent examples. I believe we must respect these and other reasonable grounds for hesitancy, and listen to people’s concerns rather than simply say: “Get the vaccine or you’re out of work.”

The UK’s venture into occupational vaccination mandates was just ahead of a worldwide curve. Private employers around the world are imposing similar mandates, as are governments such as Israel, Italy and several US states. Our project has recently started looking at vaccination passport regimes, which dozens of nations are considering bringing in. This returns us to Bentham’s quote. Someone whose employer privately imposes a vaccination mandate will look to the law not as an infraction of liberty, but for protection of liberty. So too will the employers, stuck between conflicting stakeholders and desperate for regulation. But not just any law will do. Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity. Human rights – unlike Bentham’s utilitarianism – demand that we engage constructively with the subjects of the law rather than regard them as mere units in an aggregate calculation.

In my view, the UK government should be considering procedures and structures that allow those who are worried about the vaccine to warm to it gradually, such as workplace redeployment, information programmes, a period of garden leave, and so on. Measures such as these would have humanised the policy. Instead, the government is using delegated legislation to make this into law without parliament being able to amend it. I think there are special duties of care in public roles, but that’s not to say you should just introduce a mandate in a blunt way; it must be done carefully, considerately and proportionately.

Jeff King is Professor of Law, UCL Faculty of Laws, and Co-Principal Investigator of the AHRC and Leverhulme-funded Lex-Atlas: Covid-19 project

Illustration Michelle Thompson

This article first appeared in issue 8 of Portico magazine, published November 2021.

 

The UK’s venture into occupational vaccination mandates was just ahead of a worldwide curve. Private employers around the world are imposing similar mandates, as are governments such as Israel, Italy and several US states. Our project has recently started looking at vaccination passport regimes, which dozens of nations are considering bringing in. This returns us to Bentham’s quote. Someone whose employer privately imposes a vaccination mandate will look to the law not as an infraction of liberty, but for protection of liberty. So too will the employers, stuck between conflicting stakeholders and desperate for regulation. But not just any law will do. Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity. Human rights – unlike Bentham’s utilitarianism – demand that we engage constructively with the subjects of the law rather than regard them as mere units in an aggregate calculation.

In my view, the UK government should be considering procedures and structures that allow those who are worried about the vaccine to warm to it gradually, such as workplace redeployment, information programmes, a period of garden leave, and so on. Measures such as these would have humanised the policy. Instead, the government is using delegated legislation to make this into law without parliament being able to amend it. I think there are special duties of care in public roles, but that’s not to say you should just introduce a mandate in a blunt way; it must be done carefully, considerately and proportionately.

Jeff King is Professor of Law, UCL Faculty of Laws, and Co-Principal Investigator of the AHRC and Leverhulme-funded Lex-Atlas: Covid-19 project

Illustration Michelle Thompson

This article first appeared in issue 8 of Portico magazine, published November 2021.

 

The UK’s venture into occupational vaccination mandates was just ahead of a worldwide curve. Private employers around the world are imposing similar mandates, as are governments such as Israel, Italy and several US states. Our project has recently started looking at vaccination passport regimes, which dozens of nations are considering bringing in. This returns us to Bentham’s quote. Someone whose employer privately imposes a vaccination mandate will look to the law not as an infraction of liberty, but for protection of liberty. So too will the employers, stuck between conflicting stakeholders and desperate for regulation. But not just any law will do. Laws need to be fine-tuned to accommodate the exceptions that are required to treat each affected person with equal respect and dignity. Human rights – unlike Bentham’s utilitarianism – demand that we engage constructively with the subjects of the law rather than regard them as mere units in an aggregate calculation.

In my view, the UK government should be considering procedures and structures that allow those who are worried about the vaccine to warm to it gradually, such as workplace redeployment, information programmes, a period of garden leave, and so on. Measures such as these would have humanised the policy. Instead, the government is using delegated legislation to make this into law without parliament being able to amend it. I think there are special duties of care in public roles, but that’s not to say you should just introduce a mandate in a blunt way; it must be done carefully, considerately and proportionately.

Jeff King is Professor of Law, UCL Faculty of Laws, and Co-Principal Investigator of the AHRC and Leverhulme-funded Lex-Atlas: Covid-19 project

Illustration Michelle Thompson

This article first appeared in issue 8 of Portico magazine, published November 2021.