Features Australia

Hart was right

An old text sheds new light on our lockdown laws

7 August 2021

9:00 AM

7 August 2021

9:00 AM

For my day job I’m a law professor, having been a lawyer in London and Toronto way back in the mists of time. One of the areas I’ve long taught about and published in is legal philosophy. (If you have insomnia, give me a call. We can chat. It’ll help.) It’s not often current affairs make the world of legal philosophy relevant, but such is the strangeness of these Covid times. Bear with me and I’ll explain.

Back at the very start of the 1960s an Oxford University Professor of Jurisprudence, who had worked for MI5 in the second world war, published the only monograph he would ever write in his very long life. His name was Herbert (or H.L.A.) Hart. His book was titled The Concept of Law. It has gone on to sell over a quarter of a million copies worldwide, an astonishing tally for a book on legal philosophy – nothing of the sort comes remotely close to it in terms of sales. Take it from me, a legal philosopher who had not read this book would be like a Professor of English literature who had never read Shakespeare (in today’s woke unis that’s aspirational, you understand). I go further and say that the vast preponderance of the great lawyers anywhere in the common law world today will have read it. And I, like the significant majority of legal philosophers in the English-speaking world, think Hart’s book was a masterpiece. I did a Masters of Law in London in the 1980s and I can still remember, on being told to read Hart’s book, the sense of ‘the scales falling from my eyes’ (to quote Jeremy Bentham on his having first read the great Scottish philosopher David Hume, my all-time favourite as it happens) as I worked my way through it.

Why bring this esoteric stuff up? Because Hart’s book had three themes; that’s it. 1) How does law look similar to and different from orders backed by threats, or the gunman model of law? (In these Covid times, ‘not much at all’ is the answer.) 2) To what extent can we understand any system of law ever to have existed in terms of a system of rules? 3) How do legal rules and legal obligations look similar to, and different from, moral rules and moral obligations? And in his discussion of the third of those Hart comes down strongly on the side of the need for all of us to distinguish law and morality, the claims of the one and of the other. If you are unlucky you may live in a place and at a time where the two diverge enough that you have to choose between the two. In extremis Hart comes down for morality having the greater call on you in such dire situations and sets out the choices you may face. Should I disobey the law? If so, how? Flee? Take up arms à la the American Revolutionaries against the British? Or opt for civil disobedience? Each of us must do our own cost-benefit analysis, in the full realisation that there will be costs. We will differ, each of us, in our calculations of when disobedience is warranted, what to do and whether we will have the courage to pay those costs. But, says Hart, it is insupportable to think that the claim ‘this is law’ should always and everywhere automatically command our loyalty. That is the path taken by ‘sheep to the slaughterhouse’. I agree.

That brings me to all the condemnation of the anti-lockdown protesters by our political class and by many of their lockdown-supporters in the media.  It has been near to hysterical. Just last week New South Wales disgracefully announced it is in future calling in the army, for heaven’s sake, something I have not seen in the Anglosphere since then Canadian PM Pierre Trudeau did it to deal with the murdering terrorists in the Front de libération du Québec. For what is NSW doing this? To deal with unarmed people who have had their jobs taken away from them by politicians and bureaucrats who haven’t even had the decency to take a small pay cut? And who play God by deciding whose livelihood is ‘essential’ and whose is not? Now readers will know that from the start of this pandemic, in these pages well over a year ago, I have consistently been a strong opponent of these lockdowns. Every bit of the ‘science’ based on a century of data and fully endorsed by the World Health Organisation was unequivocally against lockdowns right up until December of 2019. Obsession with Covid as the only matrix that matters has seen (and will continue to see) Australia’s excess deaths go up noticeably – and these extra deaths can’t be from our very few Covid deaths but most plausibly have been caused by the lockdowns themselves. Our political class has bungled its response to this hugely. They are spending tens of millions of dollars a month on advertising about it, propagating with your and my money only their ‘accepted view’. They don’t tell you more doctors have signed the Great Barrington Declaration against lockdowns than have signed its rival for them. My Speccie colleague James Macpherson beautifully set out on 26 July on Flat White all the reasons one might want to protest against the last 15 months of despotic government in Australia, and despotic it has been.

I won’t retread that path. Let me just say that civil disobedience is the tool of the Gandhis in India, of the Muhammad Alis over the Vietnam War and of those opposed to heavy-handed government throughout democracies. (Note, it doesn’t work in non-democracies because the Stalins of the world just kill you.) As H.L.A. Hart rightly pointed out, just because something is law and some elected official has laid it down, that in itself does not magically make those laid down edicts morally right. Or in extreme situations worthy of obedience. And no number of chief health officers or jumped up politicians foaming at the mouth changes that.

Indeed, you will see precisely such open-mindedness to dissent and to the right to protest if you check back at what all these same politicians and public doctor types said a year ago about the BLM protests. ‘Nothing to see here folks’ was their attitude. ‘Just exercising their democratic rights’. ‘Don’t fret, there are no examples of big outdoor events being super-spreaders’. And this was their attitude back when many more were dying of Covid and no one had been vaccinated.

All this hypocrisy, the stinking hypocrisy that now affects nearly all of the decision-makers in this country, is what is ruining respect for government and for the political class. It is police pushing around a pregnant woman for next to nothing. The fact your fellow Australians wish peacefully to protest is what makes – sorry, made – this country great. It is not made great by heavy-handed lockdownistas whose grasp of the current data (not modelling, data) on the pros and cons of lockdowns seems feeble to me and whose first instinct is to reach for the heavy-handed, despotic stick. This is not the Australia I came to in 2005. And these changes are being overseen by a supposedly Liberal government. It’s enough to make a grown man weep.

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