First & Last Page
The COVID-19 pandemic sparked a debate over whether the government should implement public health interventions like mask mandates and whether public health scofflaws should be punished. The result was a split largely across political lines; “permissive” jurisdictions promoted ideas of individual freedom and condemnation of government-imposed punishment, while “restrictive” jurisdictions implemented a range of punishments attached to mask mandates. This political battle became one of stagnant theories and essentially fused considerations of public health and legal punishment. Bracketing political concerns, what philosophical theories fueled this divide? While public health generally employs a utilitarian framework limited by deontic constraints, permissive jurisdictions exuded a purer libertarian deontology, and restrictive jurisdictions exhibited a retribution-laced utilitarianism. Neither is sufficient to guide public health punishment during a pandemic based on their reliance on too pure a theory. Instead, permissive jurisdictions promoted government inaction, which is simply in contravention of public health principles during an emergency, and restrictive jurisdictions used overly harsh punishments that threatened equity. What is needed is pragmatic reconciliation: the decision-making framework guiding public health punishment during a pandemic must recognize the exigency of the crisis and shift the balance of values (like emergency medicine) to prioritize population health and equity. Lawmakers utilizing this more grounded approach, which draws on foreign examples, will deliver a more practical public health response that delivers fairer outcomes, protects individual liberties, and reduces overall suffering.
Michael L. Cederblom,
**Towards Action and In Pursuit of Scofflaws: Shifting the Framework of Pandemic Public Health Punishment from Theory to Pragmatism**,
Lincoln Mem’l U. L. Rev.
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol9/iss3/5