By Roger Cotterrell, School of Law, QMUL

How does official regulation encourage responsible personal behaviour in the face of the pandemic threat to life and health? The Coronavirus Act 2020, which received Royal Assent on March 25th, provided, among much else, ultimately coercive powers for public officials, including police, to remove a person for screening and assessment if they had reasonable grounds to suspect the person as being potentially infectious, and to restrict or prohibit gatherings or events. Guidance published the day after the Act came into force clarified police powers to instruct people ‘to go home, leave an area or disperse’, and authorised the issuing of penalty notices. These would be for non-compliance with ‘stay at home’ requirements to limit shopping to necessities, restrict outdoor exercise, and avoid travel except for medical or care-providing needs or for going to work only where a person ‘cannot work from home’. Gatherings of more than two people in public ‘except in very limited circumstances’ were prohibited.

As personal guidance, these provisions have seemed generally useful. But, as public regulation, such provisions in the UK and other countries provoked debate in policing literature about challenges posed for enforcement work. Police enforcement typically addresses actual or potential breaches of criminal law or public safety regulation. Although police are not usually deeply concerned with abstract juristic issues, they operate in democratic societies with implicit ideas about the character and purposes of law that give legitimacy to their public role. But how might pandemic policing relate to such juristic ideas?

The great German jurist Gustav Radbruch saw the idea of law as necessarily expressed in a combination of three values – certainty or security, justice, and fitness for ultimate cultural and socio-economic purposes represented politically. Such values had always to be reconciled but would often conflict in practice and push law in different, incompatible directions. The task of the jurist, for Radbruch, is never-ending: to balance these values coherently in practice, in time and place.

Pandemic regulation raises interesting issues for such an idea of law. As regards the value of security, or legal certainty, the vagueness of criteria is a serious concern for police. Under the pandemic legislation and ‘guidance’ they might have to judge who is ‘potentially infectious’, whether shopping trips for ‘basic necessities’ are ‘as infrequent as possible’, whether someone ‘cannot work from home’ and so may travel, or whether a gathering of more than two people is ‘essential for work purposes’.

No doubt police regularly cope with difficult operational judgments. But Radbruch’s component of justice in the idea of law seems especially problematic in pandemic regulation. In criminal law, justice requires that the offender gets ‘just deserts’, measured against acts intended to harm others, or involving recklessness about this. But, in general, breaches of pandemic regulation are likely to be normal and natural acts of social interaction, their character made pernicious only by the force majeure of the virus. There is an analogy with public health offences where strict liability often excludes justice issues as such. Justice issues could become salient, but it is best that they do not. There could be issues of justice between the old/vulnerable and the young/healthy (but people in the latter category can become seriously ill too); between risk-takers and the cautious (but how should risk be assessed in each case?); between profit of employers and safety of employees (but both groups want economic life to continue); between essential workers and the public (but except in cases of extreme recklessness no conflicting interest is recognised).

Key issues are not about justice – the balancing of normative claims – as between different groups, but about the technological challenge of securing a healthy environment for all. Pandemic regulation is about implementing complex scientific judgments, although it uses the typical regulatory idea of enforceable duties. And it is because such technical judgments only ambiguously translate into normative social regulation that they are expressed as enforceable ‘guidance’.

Radbruch’s third element in the idea of law is the value of fitness for the socio-cultural purposes which are to guide law in time and place. Law’s purposes give content to its idea of justice, and are stabilised by its requirement of certainty. But pandemic conditions provoke ambiguous purposes of regulation – towards maintaining economic life as priority, or towards public health and the saving of life as priority. Obviously these are not separable, yet they imply policy dilemmas. Many businesses and those who fear permanent or wide socio-economic change may lean towards the first priority; many citizens and vulnerable employees may lean towards the second. The important point is that, if pandemic personal conduct regulation is to reflect the character of the idea of law in Radbruch’s sense, the ultimate socio-cultural purpose that informs it (and so the regulation itself) remains subject to varying interpretations.

In a Radbruchian framework, all value aspects of the idea of law are difficult to operationalise in informing the regulation of personal conduct in the pandemic.

Over time, no doubt, many studies will be made of the jurisprudence of the Coronavirus as its regulation has impacted on individual citizens. For the moment, a Radbruchian perspective suggests reasons why effective pandemic regulation of personal conduct is mainly very extensive self-regulation within the numerous communal networks of UK society. This regulation, which is, indeed, much informed by official ‘guidance’, depends very largely on citizens creating and self-enforcing their own rules, observing and learning from others and from their experience. Government provides much economic support for individuals, but the effective pandemic law governing most citizens’ behaviour comes from the ever-shifting moral and practical judgments they make for themselves in communal relations.