Thursday, April 30, 2020
The burden of proof is on those who impose burdens (Updated)
I have argued both that to the Covid-19 crisis, and that , and listened to more earnestly the longer the lockdown goes on. who argues that it has gone on long enough and should be eased up. Is he right? Maybe, though I don’t have the expertise to answer with certainty, and I’m not addressing that question here anyway. What I am sure of is this much: The burden of proof is not in the first place on him and people of like mind to show that the lockdown should be ended. The burden is on defenders of the lockdown to show that it shouldn’t be.
This is especially so given that the initial justification for the lockdown (the prospect of overwhelmed hospitals and shortages of ventilators and other medical equipment) no longer applies. Not to mention the fact that we can be certain that the lockdown is causing massive damage to people’s livelihoods and savings, whereas we are not certain that a general lockdown (as opposed, say, to a targeted lockdown of the elderly and those with special health problems) really is the most effective way to deal with Covid-19. Not to mention .
The issue is not just that doing massive damage to the economy is, if unnecessary, imprudent in the extreme – though, to say the very least, it most certainly is that. It’s that the lockdown entails actions that, in ordinary circumstances, would be very gravely immoral.
When a surgeon contemplates sticking a scalpel into you, it isn’t merely a matter of weighing the costs and benefits of prima facie equally justifiable courses of action, and then opting for what strikes him as on balance the best one. Rather, there is an extremely strong moral presumption against his taking such action. And if he tells you that he nevertheless thinks he should do it, the burden is not on you to convince him that he shouldn’t, but on him to convince you that he should. He must not do it otherwise. And notice that this remains the case even though he is the expert.
Now, all things being equal, temporarily forbidding someone to work is, of course, not as grave as doing surgery on him. But there is nevertheless a very strong moral presumption against the former as well. As Fr. John Naugle reminds us in , laborers have a right under natural law to work to provide for themselves and their families. To interfere with their doing so when such interference is not absolutely necessary is a grave offense against social justice (and not merely against prudence), certainly as social justice is understood in the natural law tradition and in Catholic moral theology.
Hence, governmental authorities must not treat permitting and forbidding such work as prima facie equally legitimate courses of action, either of which might be chosen depending on which one strikes them as having on balance the best consequences. Rather, the burden of proof is on them to show that there is no other way to prevent greater catastrophe than temporarily to suspend the right to work. And naturally, this burden is harder to overcome the longer the suspension being posited. Short of meeting this burden, they must not forbid such work.
It is no good to respond that governmental authorities can simply compensate laborers by cutting them checks for not working. For this is merely to add yet another measure that is under ordinary circumstances gravely immoral, and thus only justifiable in case of emergency. It just kicks the problem back a stage. The natural law principle of subsidiarity states that the state must not take over from individuals, families, and other private institutions what they can do for themselves, including providing for themselves. As Pope Pius XI emphasized, subsidiarity is a matter of justice, not merely of prudence.
So, if governmental authorities are going to pay laborers for not working rather than allow them to work to provide for themselves, the burden of proof is on them to show that there is no other way to avoid even greater evil. Again, there is a strong moral presumption against bringing about such dependency on the state, just as there is a strong moral presumption against forbidding laborers from working.
Of course, a difference between the surgery example and the case of forbidding someone to work is that a person who resists the surgery is only putting his own life at risk, whereas the rationale for the lockdown is that those who resist the lockdown order are putting the lives of others at risk. But here too, that just kicks the problem back a stage. Would a grave threat to the lives of others override the presumption against forbidding laborers from working? Sure, but now the burden of proof is on the authorities to show that letting people work really would put the lives of others at grave risk. The burden is not on critics of the lockdown to show that it would not do so.
Again, the original justification was that without the lockdown, hospitals would be overwhelmed and key medical supplies would become scarce. So, if that is no longer an issue, why do we still need the lockdown? The answer cannot be that some significant number of people will die if the virus spreads. For one thing, there is also an argument that in the long run a significant number of people will die if the population does not build up herd immunity, which would tell against continuing the lockdown. For another thing, no one calls for banning automobiles on the grounds that a significant number of traffic deaths are a certainty, and no one calls for quarantining people with flu on the grounds that a significant number of flu deaths are a certainty. So the prospect of some significant number of deaths cannot by itself be a sufficient reason.
But what if it is millions of deaths we’re talking about? Or what if ending the lockdown results in the virus roaring back and hospitals being overwhelmed after all? These prospects would seem to provide a sufficient reason. But how do we know that there would be millions of deaths? And what is the compelling evidence that the virus roaring back is likely to happen? It is not enough merely to float these as possibilities, or even as somewhat probable. We need something stronger than that.
I am not claiming that there are no good answers to those questions. I am not claiming that the presumption against continuing the lockdown cannot be overridden. What I am emphasizing is that there is such a presumption and that the burden of proof for those who think it can be overridden is a high one.
The reason this is worth emphasizing is that too many defenders of the lockdown act instead as if the burden of proof is on the other side, or so it seems to me.
For one thing, some of them seem to be operating with a double standard. If lockdown defenders change their minds or disagree among themselves about death rate estimates, the likelihood of hospitals being overwhelmed, the utility of masks, or the like, the reaction (not at all unreasonable) is to cut them a break and attribute this to the complexity of the issues and “fog of war” circumstances. By contrast, when a more skeptical scientist like John Ioannidis presents arguments that others challenge, the reaction (completely unreasonable) is to accuse him of scientific malpractice or perhaps of some suspect motive.
This is the reverse of the way you act when you recognize that the burden of proof is on you to justify massively and possibly catastrophically interfering with people’s lives. You hold yourself to higher standards and welcome criticism rather than dismissing or demonizing it.
It is no excuse that some critics of the lockdown have said stupid and inflammatory things (which they certainly have). Two wrongs don’t make a right, and all that. Furthermore, when you are doing things that might destroy people’s livelihoods and life savings, you shouldn’t be surprised if some of them overreact, and you need to cut them the same slack you demand for yourself – indeed, more slack than that. And of course, part of the reason lockdown critics have said such things is that they are overreacting to excesses on the part of lockdown defenders (such as the tendency to dismiss all criticism as “denialism”).
Defenders of the lockdown need to keep in mind that accusations of bad motives and bad thinking can cut both ways. They must be on guard against the “never let a crisis go to waste” mentality that seeks political advantage in the situation (and naturally thereby only reinforces the doubts of skeptics). They must also guard against fallacious “sunk cost” thinking that refuses to listen to criticism and looks for novel rationalizations of the lockdown, lest they have to face the prospect of having made a massive mistake. And they should not be quick to fling accusations of callousness at those who disagree with them, especially when they tend to be precisely the people least affected by the lockdown (e.g. professional writers who are pretty much doing what they would have done anyway and who face no prospect of job loss).
Everyone should make an extra effort at showing humility during this crisis, but especially those who are imposing enormous costs on others, where reasonable people can disagree about the necessity and efficacy of those costs.
UPDATE 5/1: Matt Taibbi does his usual service of calling BS on his fellow left-wingers. If liberal defenders of the lockdown don’t want people to suspect them of having an authoritarian agenda, they might consider not badmouthing free speech, praising the methods of the Chinese government, or revising history Orwell-style by pretending that it is non-experts and conservatives alone who initially minimized the coronavirus threat.