When norms collide: The COVID-19 pandemic and difficult choices on the hierarchy of norms and values

Note: A shorter version of this post was published earlier on Duck of Minerva.

Politics, as famously defined by David Easton, is the “authoritative allocation of values”, such as welfare, security, and liberty. Politicians thus have to make decisions on hierarchies between these values – and they have to weigh values against each other in cases in which they collide. It is still too early for an in-depth analysis of the numerous norm collisions in the responses to the COVID-19 pandemic. And yet, we can already see how the previously found balance between the three aforementioned values, and the norms revolving around them, is destabilised.

Norm Collisions and Norm Hierarchies

What happens to previous norm balances in case of an emergency? During the past weeks, states have prohibited religious communities from conducting their services in order to protect public and individual health. As the German Federal Constitutional Court has decided, such a prohibition constitutes a strong interference with freedom of religion and must be well-justified, limited in time, and subject to regular checks.

To slow down the spread of the virus, schools have been closed in 191 countries. This has happened at such a rapid scale that currently, over 90 percent of enrolled learners, nearly 1.6 billion pupils, are out of school. Governments all over the world have thus put these pupils’ right to education in second place in order to protect the rights and lives of vulnerable groups and ease the pressure on the health system. For a lucky portion of pupils in more developed countries – the privileged strata of societies – this new norm prioritization means ‘just’ learning in digital classrooms. For millions of others, it simply means no education at all, as they lack a quiet place to study outside school and have no access to digital infrastructure and equipment. In that case, the right to education is, without a doubt, violated.

Policy choices in the face of the COVID-19 pandemic lead to reconfigurations of established norm hierarchies. They are accompanied by inevitable societal conflicts and contentious debates. In the face of an actual or threatening health crisis, the protection of public health and particularly of vulnerable groups has been given more weight than, for example, the right of children to play, to be amongst other children, and to receive adequate care and education at day-care facilities. Not only this, but children’s health has also been compromised through delayed measles immunization campaigns in 24 countries, as has been the health of patients suffering from cardiac diseases or strokes, which have been reported to avoid emergency rooms during the Pandemic. As the pandemic goes into its fourth month, we can observe strong similarities in the ways in which governments have prioritized values in their response to COVID-19. But we can also see that, for instance, with regard to assessing the relevance of children’s rights, governments have dealt differently with these norm collisions.

Some governments, such as Denmark, have chosen to give more weight to the needs and rights of children, while others, such as Germany and especially Italy and Spain have been quite oblivious to the psychosocial needs of children, with child care and playgrounds closed or even, as in Italy, week-long prohibitions on children leaving the house or meeting other children. As the Pandemic proceeds, concern has been rising over reports of domestic violence and abuse of children and women. UNICEF and others have warned that children could very well be the “hidden victims” of COVID19, due to the multiple violations of their rights through measurements aimed at fighting the pandemic. The norm collisions emerging in the context of these extraordinary measures are thus as ‘dynamic’ as the situation itself – necessitating constant reconsideration of the appropriateness and proportionality of the measures themselves and of the hierarchies of values justifying them.

The most radical decisions that characterise the Pandemic – and emergencies overall, in health as elsewhere – are decisions on whose lives matter more than others. In situations in which there are not sufficient intensive care units available, who should be placed on a ventilator? The 35-year-old father of two? A 45-year-old woman with disabilities? The 85-year-old grandmother with severe preconditions? Doctors are familiar with making these existential decisions. Value conflicts that require prioritising someone’s right to life and right to health over other peoples’ right to life and right to health have temporal and distributional dimensions. They have a temporal dimension because it means weighing current health problems (COVID-19) that cost lives against (unintended but foreseeable) problems that will cost lives in the future. Lockdowns and social isolation are expected to heighten physical and mental health problems, including cardiovascular diseases (known to cause millions of deaths worldwide). The WHO has reported that responses to COVID-19 caused disruptions in the supply chains of essential malaria-related commodities. And vulnerable groups such as migrants, internally displaced persons, and refugees face additional discrimination. Asylum-seekers are particularly hard hit by the decision of 57 states to close their borders to them.

Psychologists, social workers, and others also warn that isolation measures and fears of losing one’s livelihood have already lead to an increase in suicides and domestic violence. These conflicts and related value choices also have a distributional dimension, because they require weighing the value of two or more lives against each other by taking into account the distribution of wellbeing that a specific choice will lead to (Broome, 2004, p. 31).

Thus, our diagnosis of multiple norm collisions in the context of the COVID-19 pandemic is, essentially, a diagnosis of collisions between different human rights norms, rather than a collision between human rights and other norms. Once more, the COVID-19 pandemic makes us realize that to claim one is ‘for human rights’ or ‘against them’ misses the point in the many situations in which we observe clashes between multiple human rights norms. And in such situations of clashing norms, governments have to weigh the right to life and well-being of some groups against the right to life and well-being of others. They weigh the well-being of some against the economic, social, and cultural rights as well as the civil liberties and political human rights of others, such as the right to education, to play and recreation, to privacy, to freedom of movement, and the right to access health care. German citizens have mostly been shielded from such difficult choices, yet citizens in countries facing security threats are quite familiar with the limitation of several human rights, such as freedom of assembly or freedom of movement, during emergencies. States have a duty to protect the right of the lives of all. However, we ought to remember that restrictions on our human rights should be proportionate and non-discriminatory. A recent UN report has put it pointedly in a nutshell: “The virus does not discriminate; but its impacts do”

Resolving Norm Collisions – The Problem of  “System-Relevance”

At present, the concept of “system-relevance”, i.e., of essential services, plays a key role in the implementation of emergency measures. It helps to define exceptions to COVID-19 regulations and thus to prevent a collapse of health-care and economic systems. At the same time, it creates new hierarchies that are prone to discrimination. “System-relevance” implies a hierarchy of professions and determines the value of their work for a functioning society. Particularly at the beginning of lock-down measures, identification as ‘system-relevant’ meant an increase in appreciation towards professional groups that, during normal times, have sub-optimal working conditions and hardly any voice or lobby power: trash collectors, nurses, child care workers, supermarket workers, and supply chain employees. Women constitute a majority in some of these groups, especially in the health-care sector where it has been shown that they have been particularly hard-hit by COVID-19. An additional gender dimension in the question of care-work during times of closed schools and childcare facilities, with women carrying the larger burden of such work.

At the same time, neither essential workers nor those doing care-work are adequately represented in the bodies who currently decide over response measures, a fact that has led to strong critique of the composition of such expert bodies. But the question of system-relevance goes further. Which stores can open first? Which industries are most important? Who receives financial support? What is essential in a society, and what do people need not only for a basic but also for a good life? Are soccer matches more essential than cultural events? Currently, one is tempted to believe that system-relevance highly correlates with space and infection risks. Governments have chosen different strategies, prioritised colliding norms differently, made different decisions on the question of system-relevance, and put in measures of various degrees of severity. At this moment in time, we cannot tell which of these strategies will work out in the desired way and at which price. It is certain though that these decisions will be reflected on in the collective societal post-traumatic therapy that will follow the pandemic. The use and potential abuse of emergency powers in these times – i.e. the rapid decisions of executive bodies on norm hierarchies that surpass the control of all three other powers (parliament, judiciary, media) – will keep lawyers and judges, legal experts, political scientists, sociologists, and philosophers busy for a considerable time.

Whose Right to Life and Right to Health?

At present, all measures are mainly justified with the aim of protecting a rather underspecified right to life (including respective ‘framing’ and rhetoric strategies). All governments in countries hard-hit by the pandemic prioritize this right over others, even though some of them were rather reluctant to embrace the ‘right to life’ or ‘life-saving’ frame at the beginning. Yet, the prioritization does not mean that the conflicts between the right to life, on the one hand, and other human rights, including the right to health and various political rights, civil liberties and social, economic, and cultural rights, on the other, vanish. Governments have decided on prioritization of one norm over another and thus have destabilized the long-existing balance between these norms.

Furthermore, the ‘right to life’ frame also shows that values and norms – and decisions of how to prioritize them – are very situation-specific, particularly where we talk about health problems. Thinking about examples outside of a pandemic, the recurrent contentious debates on organ donation, abortion, and obligatory vaccinations, where the right to life of various groups and individuals are weighed against each other, come to mind. It seems as if presenting health politics as being always about saving the lives of some while sacrificing the lives of others rather than just being about ‘saving lives’ is a taboo. However, there are economical choices – on the prices of medication and therapies, on the price of each individual COVID-19-test and who gets tested, on financial cuts to pediatric care, to intensive care, to the care of the homeless, i.e., everywhere in the health system – involved in health politics. These may explain how norm collisions are eventually resolved and which norms are prioritized.

Conclusion

The world is facing a global public health emergency. In this situation, governments have to respond, to save lives, and to guarantee the right to health. Yet, there is reason for concern: many of the adopted emergency measures run the risk of creating new problems and exacerbating existing ones. They protect important human rights but violate others. They protect the lives and well-being of some – but not of others. They are based on the privileged consultation of some groups (virologists, advisory boards) but without the participation of the wider public and representatives of vulnerable groups (women, children, migrants, and many others). And they are still too often presented as evidence-based and apolitical.

As political scientists, we seek to expose the ‘politics’ behind the seemingly natural prioritization of norms and values and the allocation of resources that comes with them. Irrespective of whether they are couched in technical or medical terms, the decisions that governments make remain political in David Easton’s sense of the word.