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COVID goes to court

Coronaviruses are ubiquitous: air, surface, respiratory tract, and the US Supreme Court for the past week. On January 10, a key element of the controversial “vaccine or test” obligation of U.S. President Joe Biden came into force provisionally, with COVID-19 for all workers in companies with more than 100 employees. Regular vaccination or testing was required. Approximately 84 million Americans were affected by the mission, and all attention was paid to the Supreme Court, which invalidated the bill on January 13.

With the support of vast amounts of scientific evidence, the US Occupational Safety and Health Administration (OSHA) emphasizes that workers are “in the workplace … facing serious danger” and agrees with their mission. Insisted. However, the National Federation of Independent Business and 27 states (all controlled by the Republican Party) argued that vaccines are “invasive, irreparable, compulsory medical procedures” and should not be imposed together.

The technical question in court was whether OSHA had the legitimate authority to enforce the mandate, but the judge also considered whether COVID-19 actually poses a workplace-specific threat. .. Still, only 62% of Americans were vaccinated, a much larger stake than these questions suggest. The question is whether 38% of Americans who refuse vaccination should be allowed to compromise their ability to make a living without facing unnecessary risks to safety. is.

And even in this broader framework, unvaccinated people are health care workers, parents, separated families, patients in need of non-COVID-related treatment, and all those who are impeded or derailed in development. It does not address the risks posed to the child.
Despite the unprecedented rapid development of effective vaccines, the pandemic is in its third year and remains rampant with mask hesitation, global vaccine apartheid, and, decisively, vaccine rejection. increase. Its sustainability is not due to the failure of science, but to the failure of other institutions that begin with the rule of law.

Specifically, it is due to a questionable legal theory. Many legal scholars have a very formal interpretation of the rule of law as resolutely neutral and immoral, even if it fails to confront the most urgent task of the day. I am proud of. A pandemic is a paradigm case. The number of preventable deaths continues to grow, and as a result, we are trapped in the dithering legislation that monitors the increasing risk of moral authority and relevance.

The problem lies primarily in the concept of law rooted in legal positivism. A major school of legal positivism, its most rigorous interpretation claims that law derives its authority from “pedigree” (where it comes from), regardless of morality (whether it is law or not). “Good” or “bad”). But in reality, this is an excuse not to commit to the explanation of group welfare, but instead to follow individual choices.

Even if this view were accepted in the midst of a booming pandemic, it would have serious flaws. The rule of law is an intricately intertwined combination of formal rules and social norms that reinforce each other. It lives in and works through the collective moral consciousness of the participants. Therefore, the role of the court is not only to apply formal rules, but also to form social norms and, if necessary, to serve as the conscience of society. Much like is a parent who exercises her judgment by intervening in a sibling’s conflict.

This does not imply that “the law is what the judge ate for breakfast.” Rather, academic research in law and psychology, and advances in cognitive science, are the clues that law is essentially a social system and that individuals provide by authoritative institutions (what psychologists call “awakening”). It shows that it reacts strongly. It embodies a strong moral position.

The positivist position fundamentally overlooks this point. It ignores the fact that historically war-torn European countries are joined together within a block that is largely integrated through the jurisprudence of the EU Court of Justice. Similarly, the Supreme Court of India’s 2018 groundbreaking ruling on non-criminalization of homosexuality has played a key role in changing the norms of the country.

The US Supreme Court has had the opportunity to both do the right thing and make history by ending this protracted and increasingly preventable pandemic and enriching the rule of law in the process. rice field. The United States, and in fact the world, needed a moral decision by the Brown v. Board of Education. It’s not the dirty cynicism (“Muslim Ban” case) seen in Trump vs. Hawaii.

The court could and should have supported the vaccine, especially given that it was already vaccinated with respect to “right to life” in other contexts. The foetation, for example, is an example of a “life” that is far more ambiguous than a mission-affected worker, who is clearly a moral agent. And the court ruled against the choice to end even one’s life in the context of euthanasia.

Legal decisions are about trade-offs, in which case either collective security or the false notion of personal freedom (as philosopher Peter Singer argued) was clearly chosen. While large employers like Citigroup and United Airlines have gone as far as imposing a “no jab, no work” policy, OSHA’s mission is far to create a safe working environment. I took a gentle approach.

Moreover, the common good should have been a tiebreaker, even if the court proceedings were held and not closed. But instead, court votes were directed at individual freedom at all costs. Even if hidden, it is at the heart of legal positivism. The circus surrounding Novak Djokovic, an anti-vaccine tennis star recently detained by the Australian border guard, is just the epitome of the turmoil unleashed by the decision to defeat Biden’s workplace mission. With hospitalization rates breaking records and U.S. deaths approaching one million, courts miss a great opportunity to use guardians against split regimes and claim their relevance and moral authority. did.


Antara Halder
Lecturer of empirical law at the University of Cambridge.


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