Restricting us as victims

Ceteris paribus, we have reasons to prefer policies that make what happen to us depend on the choices we make. People attach different sorts of value to the same choices, and therefore we must use generic reasons that all can access when we reject policies. Scanlon argues that we have symbolic, instrumental and representative reasons to value choice. Individuals can complain about policies that hinder them from making choices that would be helpful to them instrumentally (make it more likely they get what they want); restrict them from choices that shape their lives and express their values, and ‘stigmatise those that are interfered with by labelling them as immature or incompetent’(Scanlon,2 p253–4).i

Contractualist lockdown critics would object to lockdowns by arguing that there are considerable instrumental, symbolic and representative reasons to reject policies that prevent people from going outside without being liable to state punishment. Indeed, many liberty-based arguments in the political discourse around lockdown policies have been premised on precisely the sort of rationale that underlines the contractualist VoC. People have been hindered from doing what they need to do to instrumentally further their aims; they have been unable to make choices necessary to express who they are; and they have been hindered from making choices that normally adult members of society are expected to be competent to make.

If lockdown proponents want to show that their policies are justified, they must show that this objection fails—that there is reason to restrict us, as potential victims, from choosing when to leave our homes, because the value of unrestrained choice is not great enough to outweigh the value of constrained choice (Scanlon,2 p255). In not considering a strong contractualist objection based on the VoC, John and Curran do not make the best possible case for a contractualist framework for assessing lockdowns.

Restricting us as vectors

Considering that going out in the pandemic, as opposed to in hazardous waste, poses a risk not only to oneself but also to other people, we must look at what the VoC says about punishment and the necessary safeguards that must be put in place to stop people from harming others. Scanlon argues that this includes informing people about new laws and maintaining ‘social and economic conditions that reduce the incentive to commit crime by offering the possibility of a satisfactory life within the law’—that ‘without safeguards of these kinds, the value of choice as a protection would be unacceptably low’. Therefore, to use contractualism to justify a lockdown policy, we need to show that ‘the importance of the social goal justifies creating the risk’ of criminal punishment for going outside, and that ‘given the safeguards that have been put in place enough has been done to protect people against suffering harm from the threat that has been created’. Hindering people from doing something morally wrong, such as negligently infecting others with a dangerous virus, does not on contractualism ‘count as a morally significant loss’(Scanlon,2 p264). But when the range of prohibited actions include what under normal circumstances would constitute morally unobjectionable activities, such as exiting one’s house, going to work, or having a party, this makes such a policy harder to justify.ii

The most important question to ask when a short-term lockdown policy is proposed is what safeguards it is paired with—what economic, social, cultural and psychological support will be given to vulnerable communities? A lockdown policy can be justified only in combination with policy-makers’ sufficient efforts to enable people to live satisfactory lives even when they are hindered from activities such as working, going to school, organising politically and caring for their loved ones.