As noted in the first part of the essay, for any given policy we could expect some people to endorse it and some to reject it (and some to be indifferent about it). Although there may be extreme scenarios where a policy is so egregious that no one supports it, these scenarios are rare, and the reception of draconian lockdowns is certainly not among them. Those endorsing draconian lockdowns may reject any measures that do not bring about a zero-COVID outcome, and those opposing it may accept less intrusive measures that eventuate the co-existence with COVID. What we need, therefore, is a way to tell which of these opposing views should be accorded the status of being acceptable to everyone (even to those who hold an opposing view).

Conceptualizing acceptability through burden comparison

To this, T.M. Scanlon, one of the greatest moral philosophers of our time, has a solution. Noticing that our actions constantly impose burdens on each other, he argues in his contractualist account that ‘[i]t would be unreasonable … to reject a[n] [action-guiding] principle because it imposed a burden on you when every alternative would impose much greater burdens on others.’[1] This he calls the Greater Burden Principle, with which Scanlon proposes to explain the moral wrongness of an action by ascertaining the rejectability of the burdens which the action’s guiding principle imposes. Similarly, we could use the Greater Burden Principle to distinguish the reasonable rejection of a policy from the unreasonable ones that concern the policy’s alternatives. A policy that could be reasonably rejected for the reason that there exists an alternative that imposes much lesser burdens on the complainants while slightly increasing the burdens on others is a policy that, we say, fails to pass the acceptability test. Because, for such a policy, the rejection of any alternatives is unreasonable, which renders its alternatives in comparison acceptable to everyone. We cannot plausibly enforce a policy that could be reasonably rejected by some complainants while still maintaining that we recognize the burden-imposing nature of our actions yet have no choice but imposing the contested amount on them. Serving as the foundation for this particular way of understanding justifiability is the idea of reciprocity in light of social members’ mutual recognition and accommodation of burdens.[2] It does not and need not invoke thick ethical notions such as conceptions of autonomy or of good life to work.

In general, we say the persons who stand to gain under a draconian lockdown and are most likely to support the zero-COVID policy are those who would have had a higher chance of contracting the virus and died from it had the government adopted less intrusive measures. These are mostly the people whose immune system is compromised due to old age or to pre-existing chronic conditions. Moreover, it is evident that, at the early stage of the pandemic when no effective vaccine is available, the virus’s communal spread could cause overwhelming respiratory emergencies among the infected population that quickly drained the healthcare system’s capacity for accommodating other urgent medical needs. With great generalization, we say the death-centered burden associated with less intrusive measures consist of two categories: the increased risk of dying from COVID, on the one hand, and the increased risk of dying from urgent medical needs not being met under an overwhelmed healthcare system, on the other.

In contrast, the persons who stand to lose most under a draconian lockdown and have reason to complain about the zero-COVID policy are those who would not have to face life-threatening situations if the normal functioning of a social-economic order could be to some minimum extent preserved and the provision of material necessities could be guaranteed: for example, the elderly who live alone and have great difficulty in getting basic necessities with electronic devices, the people who starve due to the food shortage caused by inefficient logistics, those with chronic diseases whose routine access to necessary medical services is delayed or denied. For these individuals, the death-centered burden attributable to a draconian lockdown is the prospect of having to deal with unexpected life-threatening emergencies that arise from the disruption of a functioning social-economic order.

Death-centered burdens and the reasonable rejection of draconian lockdowns

No doubt there would be a foreseeable overlap between the two groups of persons (particularly among the elderly) who hold these opposing complaints. In that case one has to reconcile among herself, as though being asked to conduct an intrapersonal tradeoff, which of her two complaints tracks the greater burden and overrides the other. At the outbreak when the virus was supposed to be most deadly, the case fatality rates of COVID were as high as 17.3% across China in January 2020 and 14.53% across Italy in June 2020. Even at the current stage (from December 2021 to April 2022), with the milder Omicron being the dominant variant, Hong Kong still recorded a case fatality rate of 13.35% for positive patients aged 80 years and older who received one dose of a COVID vaccine or less. Deadly as COVID is, the risk of dying from it after being infected is presumably still lower than the risks of dying from urgent medical conditions not receiving timely and proper treatment or the lack of basic necessities. When, for example, the medication for controlling hypertension could not be obtained, or an asthma attack or a failing kidney could not be treated, people could die in a matter of hours or days. In addition to the likelihood of causing deaths, the degree of control one may exert over the risk should also be taken into account when comparing the burdens. A person may reduce the risk of catching the virus under less intrusive measures by adjusting one’s lifestyle and interacting with others less. However, there is little she could do to reduce her exposure to the risks of falling victim to the secondary harm under a draconian lockdown, for they arise out of unforeseeable contingencies. Therefore, with higher and intractable risks of causing deaths, the death-centered burden imposed on a person by a draconian lockdown is considerably greater than the death-centered burden we ask the same person to bear under less intrusive measures.

When these two burden-ridden scenarios apply to different groups of individuals, the comparison is similar to the way we consider them as an intrapersonal tradeoff. The same result, namely that the burden under draconian lockdown would be much greater than the bunder under less intrusive measures, should hold for different burden-bearers as well when we conduct pairwise comparison. But the comparison of interpersonal burdens does introduce a new problem. That is, is an aggregation of the burdens borne by distinct individuals admissible to the comparison? Supposedly, the more relaxed the preventive measures, the greater number of individuals who are exposed to the risk of contracting COVID and dying from it. In other words, the burden imposed by less intrusive measures, albeit being the lesser burden, would be borne by a population much larger than the population saddled with the greater burden under draconian lockdown. If aggregated burden is admitted to a burden comparison, then it is possible that, when there are enough individuals bearing the lesser burden, then the totality thereof could outweigh the total burden of a small group of much greater burden-bearers. Yet to allow this would defeat the whole purpose of a contractarian evaluation, which is to respect the separateness of persons. Contractarianism rejects the moral pertinence of aggregated burden because it does not personify burden-bearing beyond individual burden-bearers. That the size of the group of much greater burden-bearers is small does not undercut the force of their individual complaint.

To sum up, from both the intrapersonal and interpersonal perspectives, we see that the burden tracked by the rejection of the draconian lockdown is much greater than the burden tracked by the rejection of its less intrusive alternatives. Thus, even being assessed under the most favorable conditions, a zero-COVID policy achieved by draconian lockdown measures could be reasonably rejected by those who are most terribly burdened by it. With a much lower case fatality rate of COVID thanks to mass vaccination and virus mutations, with the fact that some alternative measures could still be strict enough to significantly reduce communal transmission and to save a lot of lives, and with the worry that the secondary deaths attributable to draconian lockdowns may be much more than originally thought, the reasonableness of the foregoing rejection would simply be more compelling.

The ‘liberal mode’ and justifiable maximization of life-saving

Does the fact that a draconian lockdown turns out to be unjustifiable for failing the acceptability test suggest that the ‘liberal mode’ must be justifiable for their measure being much less intrusive? Insofar as the ‘liberal mode’ does not raise the risks of causing the kind of secondary deaths we observe in the draconian lockdown, it may well meet the contractarian threshold of justifiability. There is, I suppose, a wide range of policies and corresponding measures that are justifiable in not being reasonably rejectable. Some would involve the sporadic imposition of quite strict lockdowns as a way to maximize life-saving within the contractarian constraint, despite the resultant economic impact and restriction of liberties. A measure like this may not be reasonably rejectable because it is not obvious that economic costs and some temporary interference with one’s sphere of liberty are much more burdensome than the greater risks of exposing a larger population to COVID under a more relaxed measure. Meanwhile, if we insist on prioritizing life-saving, the burden comparison may indicate that a measure that is too relaxed is reasonably rejectable in light of the fact that the uncontrolled communal spread of the virus may overwhelm hospitals and cause delay in treating non-COVID patients with urgent medical needs. In that case, the justifiable policies and measures filtered by the acceptability test would be those intrusive enough to competently save lives but not so intrusive as to significantly raise the risks of causing secondary deaths.

It would be an interesting question where the liberal mode is situated in this picture. As noted, it would be unlikely for a liberal democratic government to enforce a draconian lockdown given the ‘obstacles’ created by individual rights. Thus, having these rights in place (perhaps indirectly) makes sure that no preventive measure under the liberal mode would overreach the maximum intrusiveness allowed by the contractarian constraint. However, if there is also a minimum strictness requirement, would the liberal mode also fit in? Perhaps now it is unfair and misleading to group all preventive measures that have been employed by different liberal democracies into an overly generalized type. Some liberal democracies, such as New Zealand, have tried quite strict measures (including several lockdowns) and managed to keep the death toll per capita relatively low, while some others apparently could have done more to save lives at the early stage of the pandemic. For the states which could have save a lot more lives with stricter measures, to insist that their co-existence policy and relaxed measures are not reasonably rejectable despite resulting in much greater COVID exposure, at some point I suspect there is no way around widening the set of admissible values and considerations for burden comparison, in which case the burdens to be compared would no longer be death-centered and life-saving would not have the premium value as assigned in this essay. In that regard, if there were anything to learn from a government that has the decisiveness and audacity to take on the unimaginable task of imposing draconian lockdowns to fight a virus, it would be that life-saving does seem to be taken seriously by such a government, albeit in a misguided way.

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[1] Thomas Scanlon, 'Contractualism and Utilitarianism', in Amartya Sen and Bernard Williams (ed.), Utilitarianism and Beyond (Cambridge, U.K.: Cambridge University Press, 1982), 103-28 at 111.

[2] Thomas Scanlon, What We Owe to Each Other (Cambridge, M.A.: Harvard University Press, 1998) at 194.

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.