10.6092/issn.2531-6133/11543
application/pdf
2531-6133
11543
2
en
Pauline Westerman
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Bowing to Authority: the COVID-19 Experience
Text.Serial.Journal
https://bolognalawreview.unibo.it/
5
Obiter Dictum
2020-09-19
2020-09-17
2020-09-19
2020-10-14
234-239
UBLR
Pauline Westerman
2020/09/19
10.6092/issn.2531-6133/11543
234
University of Groningen
2531-6133
2
en
239
Bowing to Authority: the COVID-19 Experience
https://bolognalawreview.unibo.it/article/download/11543/11613
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                         UNIVERSITY OF BOLOGNA LAW REVIEW
                        h ps://doi.org/10.6092/issn.2531-6133/11543
                                              A

            Bowing to Authority: the COVID-19 Experience
The Covid-19 crisis is not only a subject of sadness and increasing worries but also a source
of wonder and amazement. The incredible speed with which people adapted themselves
to the new circumstances is one of the most remarkable features of the last few months.
Much was made possible by technology (without the internet, a lockdown would not have
been an option at all), but also regulation was drafted so swiftly that it seemed to mock
the usual complaints about bureaucratic inertia.
        Even more astonishing probably, especially for those whose job it is to reflect on
law, is the amazing initial preparedness and willingness of people to comply with the rules.
It is true that countries reacted differently, according to their tradition, political context,
and historical experience. Some countries reacted with a more Draconian measure than
others, and whereas in some countries people were literally banned from the streets, other
countries boasted a more liberal attitude. But even in the latter, where there is a strong
tradition to ‘let people decide for themselves’ and where governments admonished their
citizens to make use of their common sense (as the Dutch Prime Minister never tired of
pointing out), the infringement of human rights was massive. Even there, police entered
private houses in order to impose fines on friends who had gathered there, as was the case
with students who, though sharing the same flat, nevertheless were considered to belong
to different households’ and were fined for sharing their meals together. Nevertheless, in
the first stages of the crisis, these measures met with very little resistance and it was only
after the worst was over and infection rates dropped that the people started to express
doubts and criticism. Then and only then, people started to organise protests against the
measures.
        It would be too simple to say that in times of emergency people naturally flock
around their leaders and that as soon as the emergency is felt to be less threatening and
acute, people start to think for themselves.The question is rather: what kind of reasons
impel them to obey or violate the rules? Do they obey because their leaders are informed
by experts and because the official guidelines they issue are based on scientific evidence?




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Or do they obey because it is the Prime Minister who in the name of the government
announces these rules on prime time television? And what fuelled the protests against
governmental measures in the later stages of the crisis? A distrust in science or a distrust
in politics?
            Joseph Raz’s theory can be of help here to shed light on the matter. Although he is
a philosopher and not an empirical sociologist he introduJosced a conceptual distinction
which enables us to get a proper view of what happened.1
            Raz distinguished two types of reasons: first order reasons and second order
reasons. First order reasons are reasons to act in a certain way. Should I go with Tom to
the city to have fun? Or should I stay at home to finish this article? By balancing these
conflicting first order reasons, I will finally decide on a specific course of action.
            Second order reasons are reasons about reasons: second order reasons decide
which reasons should and should not be taken into account. For instance, if I promised
Tom yesterday that I would take him to the city centre, this very promise is a reason for
me to disregard several conflicting first order reasons today such as that it will rain or
that I want to finish my article. Promises are what Raz calls‘preemptive reasons’, reasons
which prevent other reasons from being taken into consideration. Not only promises,
but also rules, expert advice, decisions and agreements are all pre-emptive reasons.
            Second order reasons often pertain to collective action, as is the case with
agreements and rules, but they can also be individual: a promise I made to myself or a
rule that I imposed on myself. For instance, if I decided that from now on I will exercise
daily, that decision itself is a second order reason not to enter into a debate with myself
every morning about whether I feel like it, or whether I have other pressing concerns.
The fact that that is the rule that I decided upon is in itself sufficient reason to adhere to
it. That is why we often speak about second order reasons in tautological terms: “a
promise is a promise” or “rules are rules” or, unfortunately better known: “command is
command”.
            Why do second order reasons exclude deliberation on first order reasons? Raz
thinks that this is due to the fact that a second order reason is the outcome of a deliberation
between first order reasons. In the case of my promise to Tom, it is assumed that my
promise is not given light-heartedly but is given after some reflection on the relevant (first
order) reasons, one of which is my wish to do him a favour and which is balanced against
my wish to finish my paper and the probability that it will rain. The promise, therefore,
is thought to be the outcome of balancing first order reasons and thereby replaces those

1
    JOSEPH RAZ, THE MORALITY OF FREEDOM (1986) 38-62.


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reasons. Were I to allow them to play a role in the discussion, they would count double.
That is why Raz calls these second order reasons ‘pre-emptive’: they make the first order
reasons ‘empty in advance’.
        The better this process of deliberation (i.e. the more different considerations have
been taken into account) the more weighty the resulting promises, agreements and rules.
We might also say: the more “authoritative”. The rule or statement issued by an authority
is not just another first order reason for me to do or to refrain from a certain act, it is a
second order reason for me not to act on first reasons, because I trust the authority to
have balanced a plurality of (first order) reasons (values and interests) and that the rule
was the outcome of such deliberation.
        Authorities are not necessarily endowed with legal or political authority.
Specialists can also enjoy authority if they are believed, on the ground of their expertise,
to be better equipped to balance different first order reasons. If I treat a financial advisor
as an authority I believe that her knowledge is more complete in financial matters than
mine, which enables her to appreciate, consider, and balance more first order reasons
than I can do myself; I defer my own judgement to her in the belief and trust that she will
better take care of my financial resources than I am capable of myself. That means that
her advice will preempt my own reasons to invest or borrow money. Obviously, I can also
treat myself as an authority, as in the case of the daily exercise mentioned above. I then
view the decision of my ‘better’ and more rational self as the result of a superior kind of
balancing, which I am not able to perform late at night or when I have a headache. But
more commonly, we rely on the authority of others.
        But not unconditionally. As Raz pointed out, we can only speak of authority if it
succeeds in balancing the different reasons (goals, interests and values) that apply to us in
a better way than we could do ourselves. If the financial advisor repeatedly causes me to lose
money, I will look for another one, even though I am not able to pinpoint the deficiencies in
her expertise. Authorities who only act on first order reasons which apply to themselves,
such as winning the coming election, and do not balance considerations that are relevant
to their citizens, lose authority. The more we can rely on their balancing act (i.e. the more
sensitive they are to different values and interests including mine) the more we will be
moved to comply with their resulting rules.
        So far so good. Going back to the Covid-experienc there are clearly two instances
of authority at stake here: medical authority and political authority. At the outbreak of
the virus the Dutch Prime Minister (and I think most Western European governments)
explicitly and repeatedly asserted that governmental measures were and would be
completely guided by scientific medical expertise. Being clearly unable to assess and


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apply the various virological and epidemiological considerations by himself, our PM
bowed to the authority of medical experts and left it to them to do the balancing. In the
Netherlands, this led to the establishment of the so-called Outbreak Management Team
(OMT) in which different medical disciplines participated. Virologists, epidemiologists,
and intensive care specialists deliberated on different possible strategies, each of which
can be seen as first order reasons for action. The result of their deliberations, the advice
they finally gave to the government, was therefore received by the Cabinet as an
authoritative second order reason: medical recommendations were followed to the letter
and translated into governmental decrees without further ado.
        The Cabinet might have thought that its total reliance on medical expertise
would inspire confidence on the part of the public and be conducive to widespread
compliance with the rules issued by the public authoritie and indeed, at the beginning of
the crisis, this strategy was successful. It made people suddenly stop shaking hands and
engage in strange dances in the streets to keep each other at the prescribed 1.5 metre
distance. The unconditional surrender of politics to medical authority is presumably one
of the factors that contributed to the quick and unreserved compliance of citizens. This
degree of compliance that was not attained in countries such as the US and Brazil, where
political leaders were in competition for the authority enjoyed by medical experts, as
exemplified in the Fauci-Trump relationship.
        So in the initial stage of the crisis, deference to medical authority was a success.
But when the worst was over, it became clear that this strategy could be vulnerable and
risky as well. In the first place because ‒ as was to be expected ‒ science did not speak
with one voice. A number of scientists, who were not daily sitting at the Cabinet table,
were quick to point out that the scientific evidence was far from conclusive on a number
of issues, and revealed that even the most basic assumptions were a contested territory.
They thus reopened deliberation on the various medical first order reasons and
undermined the authority of the team. And rightly so! If science starts to issue second
order reasons which do not allow for reconsideration and rebalancing, it removes itself
from the scientific ideal of openness, ongoing discussion and essential refutability and
revisablity of theories. By this, however, the authority of the Cabinet was undermined as
well. Having claimed that its policies were entirely dependent on scientific medical
advice, every attack on the official medical expertise simultaneously weakened the
authority of governmental policies. Political authority became vulnerable to scientific
refutation.
        However, there was a second risk of this deference to medical authority, which
materialized as soon as people came to realize that Covid was here to stay. The daily


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consultations between the government and the OMT led to the situation in which the
OMT started to identify itself with the task of the government. They started to take into
account non-medical reasons as well. At least that is what happened in the Netherlands
when medical experts said that it was not necessary to wear protective masks or that it
was not dangerous to fly. They did not recommend this out of medical expertise but
were also guided by other considerations: that there was a shortage of masks, and that
airline companies faced bankruptcy.
        Therefore, in a sense, medical experts overstretched their boundaries, taking
into account first order reasons which they were probably not better able to weigh. This
obviously ignited the debate on the composition of the team. If their advice was so
authoritative, why did it only consist of medical experts? Why not include economists?
Why not include behavioural scientists or ethicists? Or, let us be honest: constitutional
lawyers? Didn’t the deplorable state of the economy and the repeated violations of
human rights call for an extension of expertise?
        These questions are justified in the context of a government which has
apparently outsourced its authority to weigh second order reasons to the OMT. In that
context, it seems reasonable to require a composition of the team that would not
exclusively focus on the virus and which would take into account the interests of small
businesses, the wellbeing of schoolchildren and students, of old people in retirement
homes, of the mentally retarded, as well as the requirements of the rule of law and
respect for human rights.
        At the same time, however, one might question the wisdom of extending an
expert medical team to other expertises. Would it not be simpler and more democratic if
the government resumed its responsibilities as an authority and weighed the various
first order reasons itself? It is one thing to listen carefully to medical experts in the face
of a pandemic, it is another thing to substitute political authority for scientific authority.
It is one thing to treat medical reasons as very weighty and important first order reasons,
it is another to take their recommendations as a second order reason which excludes
inquiry into ‒ other ‒ first order considerations.
        Maybe it is time to remind the governments of democratic societies of the Razian
wisdom: that they enjoy authority insofar as they are better able to balance first order
reasons than individual citizens, and that they only function on the basis of the
confidence that they can engage in this complex task because of the fact that they
represent the multiple voices, interests and values of the population at large. It might be
the case that that is not enough and that additional expertise (medical, legal, ethical) is
required in order to have a clear insight into the first order reasons that play a role. But


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the government is the final instance that should do the balancing. If it tries to hide itself
behind the tree of knowledge, it can only do so at the expense of losing its authority in
the long run. No expert can remedy such a loss.

                                                                         Pauline Westerman †
                                                                 Professor in Legal Philosophy
                                                     University of Groningen, The Netherlands




† This contribution is inspired by a discussion I had with my colleague Kostiantyn Gorobets

who is writing his PhD on authority in international law.

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