The world has entered into its second year of the COVID-19 pandemic. At different stages of the outbreak, various disease preventive measures have served as a form of experimentation by governments in their efforts to control the spread of the coronavirus in order to save lives. In one extreme, we see China’s draconian lockdown measures whose purpose is to cut the transmission chains of highly contagious viruses by radically minimizing social interactions both in public and private spheres for a period of time. A strategy like this has a low toleration for communal spread (‘zero-COVID’ policy, as it is called). Once a threshold number of cases are detected – and the threshold would be set quite low – it is supposed that a full or partial lockdown would be triggered, in conjunction with contract tracing and the compulsory transfer of positive patients to quarantine facilities. While these measures purport to save lives by preventing most people from being infected in the first place, it is increasingly observed that they inevitably contribute to an increase in the risk of causing harm (and even deaths) that could have been avoided, such as delays in or denials of emergent medical treatments, food shortages, etc. It appears that such risk correlates with the intrusiveness of the measures: the more draconian the measures, the greater the risk. Notwithstanding the risk of causing secondary damage and mounting grievances, proponents of the ‘zero-COVID’ policy often cite the relatively low death toll as the justification for draconian lockdown measures. What is the nature of such a justification? Does it withstand moral scrutiny? Is a draconian lockdown like the current one in Shanghai justifiable on normative grounds? Does it pose a challenge to the way liberal democracies handle the pandemic? This two-part essay offers some reflections on these questions.

The 'liberal mode' of co-existence with COVID

To better understand the above justification it may be helpful to contrast draconian lockdown with a mode of fighting COVID to which a different rationale applies. Though reducing social interactions is recognized as one effective way to curb the spread of the virus, most governments cannot afford draconian lockdown measures in terms of both human capital and financial resources. To most liberal democracies, there is more to the pragmatic incapability of enforcing a draconian lockdown. In these countries, basic individual rights limit the policy options a government can permissibly pursue. Even though these rights for the most part do not determine policy outcomes, they do slow down the decision-making process, as policy-makers must take them into account (if only to circumvent them) when designing the preventive measures. Finally, these rights secure an autonomous sphere in which the right-holders are at liberty to act. This inevitably entails possibilities that a rights-holder exploits her freedom to the effect of undermining the collective effort to curb communal spread. These structural factors make it also practically impossible to eradicate COVID by preventing people from contracting the virus. Thus, most liberal democracies are ‘forced’ to prepare for a long-term co-existence with the virus by building up herd immunity through natural infection and mass vaccination. With a grave generalization, let me call it the ‘liberal mode’ – a right-centered approach for implementing preventive measures which most liberal democracies adopt. It corresponds to the ‘co-existence’ policy.

Zero-COVID policy and maximizing life-saving

Against this backdrop, the strongest moral argument for imposing draconian lockdown measures seems to be the following: given that the fatality rate associated with COVID infection is a stable figure in any period of time, it is almost certain that a public health policy that allows the bulk of a population to contract the virus (albeit at a controlled pace) would result in more people dying from it than would a policy that strives to prevent people from getting it. This would be so even with the fatality rate gradually dropping as the vaccination rate climbs and a milder (but more contagious) variant emerges. Indeed, as it transpires, so far the absolute (or per capita) death tolls from COVID are in general much higher in the countries adopting the ‘liberal mode’ than in China, which for two years has maintained a ‘zero-COVID’ policy and has several times now sent its metropolises into draconian lockdown mode. The statistics on the secondary deaths caused by draconian lockdown measures are hard to find. For the sake of argument, let’s assume – and it may not be too far-fetched – that, even counting secondary deaths, there would be fewer loss of lives to COVID if a draconian lockdown is imposed than if it isn’t. Under these favorable conditions, we say draconian lockdown seems justified because it maximizes life-saving compared to other less intrusive measures. I shall subject this argument to moral scrutiny. Bear in mind that some of the foregoing conditions may not hold as the current events continue to unfold (For one thing, the risk of causing secondary deaths by a draconian lockdown may turn out to be much higher than we thought). In that case, the argument for a draconian lockdown would hold less appeal than it does as presented here.

Since the case for draconian lockdowns is based on maximizing life-saving, it is also claimed that the ‘zero-COVID’ policy reflects that the government of China values human lives above everything else. This needs qualification, of course. Draconian lockdown measures, like any alternatives, have a direct impact on the economy. The poorer an economy performs, the more deaths that may be attributable to deteriorated social-economic situations in the long run. It seems inappropriate, however, to treat increased deaths of this kind as part of the consequence of enforcing draconian lockdowns. Unlike the secondary deaths mentioned above, increased deaths resulting from deteriorated social-economic situations in the long run take place through a long causal chain from which it would be difficult to isolate a draconian lockdown as the main causal factor. In any case, seldom do people who argue against draconian lockdowns rely on the speculation that such lockdowns may cause more overall deaths than less intrusive measures in the long run to make their point. If anything, the contrary is the case: regardless of one’s view on draconian lockdowns, it seems widely recognized that they could save more lives than other measures.

Thus, those who reject draconian lockdowns normally would point out that a justification only focusing on life-saving overlooks considerations or values that are also important: the value of free movement, the psychological impact of lengthy isolation on a person’s well-being, the augmentation of already unfair distribution of social costs, etc. They propose that there are more things other than life-saving worth promoting. However, this line of thought falls exactly into the charge with which proponents of draconian lockdowns distinguish their case. That is, the ‘balancing approach’ shows that life-saving is not accorded overriding importance in their COVID policies. In that connection, a draconian lockdown is presented as the choice that purports to assign the highest value to human life, while any measure that saves fewer lives while it could save more is denounced as trading off lives for freedom, rights, economic gains, and so on.

Depicting the rivalry between draconian lockdowns and less intrusive measures as about whether life-saving is, or could be, traded off for other valuable things, I think, obscures an important moral issue of draconian lockdowns. It overlooks the problem that there are life-tradeoffs within the maximization of life-saving by draconian lockdowns. Are such life-tradeoffs morally permissible? On what basis could we make that judgment? To answer those questions, I believe we need not introduce external premises like freedom or fairness; instead we shall distinguish deaths by different causes and compare their respective probabilities. Our evaluative focus remains solely on life-saving, and in that we would examine and challenge the justification of a draconian lockdown on its own normative premise.

Since a draconian lockdown evidently causes secondary deaths, it maximizes life-saving in effect by engaging in the interpersonal tradeoffs of lives. Policymakers are aware that for a draconian lockdown to work, they need to radically replace a market-oriented order with centralized planning for the provisions of necessities. And it is foreseeable that such an abrupt and disruptive transition would give rise to shortages of food and dysfunctions of essential municipal services which can put some people into life-threatening situations. Yet, as long as there is marginal gain in terms of life-saving (i.e., the increase of the secondary deaths does not outnumber the increase of the lives saved) with tightening control, the tradeoffs of different people’s lives would appear acceptable from a standpoint of maximizing life-saving, and draconian lockdowns would remain a measure justifiable for saving more lives than any less intrusive measures that impose negligible risks in causing secondary deaths.

(Im)permissible interpersonal tradeoffs

Behind this is the common mistake of categorically treating interpersonal tradeoffs of benefit and loss as if they were intrapersonal tradeoffs. In general, intrapersonal tradeoffs seldom raise moral questions because both the loss and gain would be borne by the same person making the tradeoff. It is her own decision, if she wishes, to accept short-term loss in exchange for long-term gain. But society is not a person, and the loss and gain distributed by a policy may not befall the same group(s) of individuals; they are, namely, interpersonal tradeoffs. Interpersonal tradeoffs in public policies are morally alarming because the policies are coercively enforceable, which means that a person could be forced to bear loss that she refuses to take. Applying a simple aggregation of costs and benefits, which is permissible for judging the worth of intrapersonal tradeoffs, to evaluating policies that involve interpersonal tradeoffs, fails to respect the separateness of persons. Acknowledging the separateness of persons requires policymakers to at least ascertain whether the interpersonal tradeoffs implicated in a policy is acceptable to everyone concerned, despite knowing that actual acceptance may not be obtainable. We call this contractarian evaluation. The normative basis for subjecting policies to such an evaluation is one’s consent informed by a certain moral viewpoint.

It is important to clarify why respecting the separateness of persons entails an acceptability test. Implicit in the test is not a repudiation of the validity of optimizing interpersonal tradeoffs on the basis of aggregated costs and benefits. Rather, it is about constraining the extent of such tradeoffs lest they be treated the same as intrapersonal tradeoffs. What underlies the constraint is the idea that, as a distinctive being, a person’s willingness to accept burdens for the benefits of others is based on some expectation of reciprocity that one day there would be her turn as a beneficiary of policies. We cannot expect a person to accept always being a burden-bearer in the service of others. Unconstrained interpersonal tradeoffs may do just that, under which a person may be asked to undertake a burden so great (such as death) that it deprives her of any prospect of future gain. Therefore, we apply the acceptability test to rule out tradeoff options that in effect disregard the separateness of persons in obliging one to make a sacrifice that nobody in her position could accept. After removing impermissible interpersonal tradeoffs, one may apply the cost-and-benefit analysis for choosing an optimizing policy from the remaining tradeoff options. On this interpretation, both the facts that states never cease to implement policies that implicate interpersonal tradeoffs on the basis of cost-and-benefit aggregation without obtaining anyone’s consent, and that any policy tends to drive a wedge between winners and losers, who have a cause to complain about the policy that makes them so, are not irreconcilable with our conclusion that the contractarian evaluation of a policy is necessary for judging its justifiability.

Whether the interpersonal tradeoffs for maximizing life-saving implicated in the zero-COVID policy could pass the contractarian evaluation will be discussed in the second part of the essay.

Teng Li is a Postdoctoral Fellow at the International Research College (IRC) at SCRIPTS. Trained in legal and political philosophy, Teng wrote a doctoral dissertation on the justification of the coercive power of the state. He also holds law degrees from New York University School of Law, mainland China and Hong Kong.