Covid Lockdowns Signal the Rise of Public Policy by RansomTags Law
Public commentator Amanda Marcotte is “incandescent with rage”—her words—with those who refuse to be vaccinated against covid-19.1 She wants to get back to her spin class, and the unvaccinated are ruining it for her. Lockdowns and other restrictions on gymnasiums have either closed them or required masking during training sessions, and the result is that Marcotte is unable to enjoy her spin class at the gym, so she has had to cancel and exercise at home. In attributing where the blame for this predicament lies, she is unequivocal: “[B]y refusing to do the right thing, the unvaccinated are stripping freedom and choice from every other American who got vaccinated. We stand by helplessly watching restrictions pile back on and our freedoms dissipate, all to protect those who won’t protect themselves.”
This statement is indicative of a relatively new phenomenon in public commentary, which is a general support for the rise of what I call “public policy by ransom.” Public policy by ransom occurs when a government imposes a behavioral requirement on individuals and enforces this by punishing the general public in aggregate until a stipulated level of compliance is attained. The method relies on members of the public and public commentators—like Marcotte—who will attribute blame for these negative consequences to recalcitrant citizens who fail to adopt the preferred behaviors of the governing class. In the weltanschauung that underpins this type of governance, government reactions to public behaviors are “metaphysically given” and are treated as a mere epiphenomenon of the actions of individual members of the public who dare to behave in ways disliked by public authorities.
It is important to note that the phenomenon of public policy by ransom should not be confused with the mere occurrence of bona fide conditional public actions undertaken by government. There is nothing inherently wrong with governments forming their policies conditional on the behavior of the public, and changing policies when public behavior changes. Indeed, public policies on pandemics and vaccination clearly should be informed by public behavior relating to those issues—governments must make choices about proposed pandemic restrictions and these choices should be informed by relevant factors.2 While there is scope for legitimate argument over reactive restrictions on the unvaccinated or maskless, what has emerged as an ominous mode of thinking in this atmosphere is the reflexive attribution of blame to recalcitrant members of the public for any subsequent negative consequences imposed on the public by government policies. If the government chooses to impose a negative consequence on the public—even conditionally on the behavior of the public—that consequence is a chosen policy of the government and must be viewed as a policy choice.
There are two main diagnostic signs that indicate when the mode of governance has gone beyond legitimate conditional policy formulation and has entered the domain of public policy by ransom. The first sign is when there is evidence that policy formulation is motivated by a desire to punish noncompliance with behavioral prescriptions for its own sake, rather than optimizing the response to the problem at issue. For example, in a recent cabinet meeting of Israeli ministers, health minister Nitzan Horowitz was caught on tape (prior to the meeting) explaining to his fellow ministers that although certain public movement restrictions lacked any good epidemiological or public health basis, they would nonetheless assist in incentivizing people to get vaccinated in order to alleviate public restrictions.3 The second sign is when governments (and related public commentators) encourage the public to view their own policy responses to behaviors as immutable, and to therefore view individual members of the public as causally responsible for negative impacts from government policies. Such ominous thinking is on display among many public commentators, who view restrictions imposed by governments as an unavoidable consequence of public behavior. Journalist Celia Wexler claims that covid vaccine sceptics are “ruining the return to normal,” and her emotional reaction is somewhat similar to that of Marcotte. She says that “[e]xperts recommend using soft skills of listening and empathizing to persuade holdouts to get vaccinated. But instead our hearts are hardening. Every day, more of us are supporting mandates and penalties.”4 (Observe here the attitude of some commentators who present themselves as models of tolerance: to such people, listening and empathizing are desirable, but only as a means to manipulate behavior; similarly, mandates and penalties are undesirable, but must be the ultimate result if people do not conform to desired behavior by choice—thus do people self-indulge as models of tolerance and charity even while advocating odium and mandates against those they seek to coerce.)
Of course, some readers may take the view that, while it sounds a bit nasty, a little bit of public policy by ransom is a necessary expedient to deal with a major public health problem, even if it means trampling on some of the norms and niceties of governance under ideal conditions. If one accepts public policy by ransom under this expedient view, then it is worth observing that if this general method of governance is accepted, in principle, it allows governments to impose any behavioral mandate they desire on the public and attribute any negative consequence to noncompliant members of the public. Since governments control the imposed consequence of noncompliance, they have unlimited capacity to soften or strengthen negative consequences imposed on the general public. For such reasons, this mode of governance can be viewed as an ideal way to begin installing a government-mandated “social credit system.” A number of articles have highlighted the use of the covid-19 pandemic response to strengthen the existing social credit system in China,5 but others have also noted that such a system is rapidly emerging in the Western world.6
One interesting political and juridical aspect of public policy by ransom is that it degenerates the rule-of-law and bypasses the ordinary legal requirement to mandate or prohibit public behaviors explicitly by legislation or regulation (with the various attendant safeguards of this process). Under the approach of public policy by ransom, to impose their preferred mandates governments need only use (existing) broad regulatory powers to open or shut parts of society on an ad hoc basis, according to their own assessment of behavioral compliance; irate public commentators and social media demagogues then do the rest, and a form of de facto mandatory public behavior is born. Under this mode of governance, the press briefing becomes the new legislature, the words of ministers and their public relations spokesmen become the new laws of the land, and the Twittersphere and media join the police as adjuncts of the new constabulary.
A secondary aspect of public policy by ransom that is noteworthy is that it has remarkable parallels to certain well-known modes of justification for domestic violence. “See what you made me do!” becomes the explanatory approach of public officials quizzed on public policy choices, as citizens are left cowering in the corner with bruises. Perhaps the most striking similarity between these two phenomena is that they both involve the attribution of causal responsibility to initial behavior that causes those in power to respond with coercion, and so blame for negative outcomes lies not with those who impose those outcomes, but those who caused them to do so. “If you don’t have dinner on the table when I come home, I’ll go crazy on you and the kids, and it’ll be your fault!”
Critics of this analysis will presumably respond that the parallels I am highlighting here are not analogous to present circumstances, since the negative consequences imposed by lockdowns, mask mandates, etc., are all genuine epidemiological and public health requirements to deal with the consequences of public behavior. But of course, that is precisely the question at issue, and it is precisely here that one identifies clear examples of public policy by ransom. As discussed above, in Israel, the health minister has more or less admitted to his colleagues that various aspects of the government’s imposed “green card” system are not justifiable on epidemiological grounds, but are useful as a means of social control and “incentivization” of the unvaccinated. This is the nature of public policy by ransom—the imposition of negative outcomes on society for its own sake, as a means of social control.
All of these aspects of public policy by ransom are ominous developments in the thinking of the commentariat. It is likely that some have not fully thought out the implications of this mode of governance, and the unlimited power of coercion it entails to advance any behavioral agenda preferred by the government of the day. As a thought experiment, it is instructive to consider how some of these public commentators might react to the following circumstance. Suppose that a religious conservative government, lamenting the loss of nationalist and religious cultural norms in their country, decided to impose their behavioral preference that all students and workers in the country should start their day by saluting the flag (of whatever country they are in) and swearing homage to God at their morning meeting/assembly. To encourage this behavioral push, they simultaneously impose a policy to ban the functioning of public restaurants, bars, and theatres, until they can verify 80 percent compliance with their behavioral preference. One can easily imagine the kind of fig leaf of political justification that would attend this policy connection—e.g., that the continued operation of public social spaces represents a danger to society unless citizens hold good public morals for strengthening the nation. How might our high-minded public commentators react in such a case? Would they lament that their “hearts are hardening” for those who refuse to comply? Would they be “incandescent with rage” at those who are “refusing to do the right thing”? Would they complain of those unruly ne’er-do-wells who refuse to make the required nationalist/religious invocations and thereby ruin society for the rest of us? Of course, to ask these questions is to answer them—they wouldn’t, because theirs is a purely mercenary approach, and they don’t share the behavioral goals in this hypothetical case.
Like pandemics before it, one hopes that the covid-19 pandemic will subside, whether this be through vaccination, natural herd immunity, or some exogenous good fortune. What will our society look like when that happens? Will we be “back to normal”? Will our public and commentariat preserve any residual instinct for respecting the autonomy of the individual? Will our mode of governance have degenerated so far that it has become acceptable for public authorities to hold the public to ransom? Only time—and the actions of individuals who respect personal liberties—will tell.
- 1. Amanda Marcotte, "It’s Okay to Blame the Unvaccinated—They Are Robbing the Rest of Us of Our Freedoms," Salon, Aug. 12, 2021.
- 2. Libertarian arguments on the legitimacy or illegitimacy of compulsory vaccination (for whatever little influence these arguments have in public policy formulation) hinge on an assessment of whether the absence of vaccination causes such an “unacceptable risk of harm” that fraternization with others by nonvaccinated people can properly be regarded as a rights violation (see J. Bernstein, "The Case against Libertarian Arguments for Compulsory Vaccination," Journal of Medical Ethics 43, no. 11 (2017): 792–96). This assessment hinges in turn on an assessment of the risk of harm from the disease, the efficacy of the proposed vaccination, and the risk of any attendant side effects. While this leaves open the possibility of compulsory vaccination in extreme cases, suffice to say libertarians place a high bar on such an assessment, and they are cognizant of the ease with which arguments for an “unacceptable risk” can be made in the heat of an emergency, a fortiori when there is a strong incentive for emotional or politically motivated decision-making affected by social-desirability bias.
- 3. T. Staff, "Health Minister on Hot Mic: Some COVID Restrictions Are to Incentivise Vaccines," Times of Israel, Sept. 13, 2021; "Caught on Hot Mic, Israeli Health Minister Says ‘Green Pass’ Not Based on Epidemiology," Jewish News Syndicate, Sept. 13, 2021.
- 4. Celia V. Wexler, "Covid Vaccine Sceptics Are Ruining the Return to Normal. We Have No One to Blame but Ourselves," NBS News THINK, Aug. 8, 2021.
- 5. L. Khalil, "Digital Authoritarianism, China and Covid," (Lowy Institute) Analyses, Nov. 2, 2020; Adam Knight and Rogier Creemers, "Going Viral: The Social Credit System and COVID-19" (unpublished manuscript, last modified Jan. 19, 2021), PDF; Larisa Brown and Philip Sherwell, "China Uses Cover of Covid to Expand Big Brother Surveillance and Coercion," The Times (UK), Apr. 25, 2021; A. Bernot, A. Trouth-Goik, and S. Travaskes, "China’s ‘Surveillance Creep’: How Big-Data COVID Monitoring Could Be Used to Control People Post-pandemic," The Conversation, Aug. 31, 2021.
- 6. Rich Acello, "Would a Government-Backed Social Credit Scoring System like China’s Ever Fly in the US?," ABA Journal, Aug. 1, 2020; L. Hollis, "Coming Soon: America’s ‘Social Credit’ System?," Minot Daily News, June 30, 2021; R. Clark, "We Need to Act Now to Block Britain’s Social Credit System," The Spectator, July 24, 2021; K. Tate, "Coming Soon: America’s Own Social Credit System," The Hill, Aug. 3, 2021; T. Hinchcliff, "COVID Passport Mandates Are Fueling Authoritarian Social Credit Systems, Digital Identity Schemes," The Sociable, Aug. 3, 2021.