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The Justification for Stay-at-Home Orders in the Face of Protests

As the nation chafes under restrictions put into place to prevent serious illness and death, commentators on both sides of the political aisle debate how much governments can restrict individual actions. In a country that prides itself on individual freedom and places a high value on autonomy, where should we draw the line?

The issue is one that I grapped with in my book, Consentability: Consent and Its Limits. Autonomy is one of society’s most cherished values – but respecting the value of autonomy requires respecting everyone’s autonomy. “Autonomy” is usually understood to mean “individual” autonomy - and is too often used to justify selfish and socially harmful behavior. I use the term “collective autonomy” to refer to the interest that members of society collectively have in their autonomy. To put it succinctly, one person’s exercise of autonomy should not infringe upon another person’s exercise of autonomy. Or, as the saying goes, “A man’s right to swing his fist ends where another man’s nose begins.”

The saying, however, is only partially true because it assumes that the other man is an innocent bystander and not an assailant. One is permitted to swing one’s fist at another’s nose in self-defense. When we make our laws, we are also making certain assumptions. What are those assumptions?

In order to answer that question, I developed a hierarchy of autonomy interests. Autonomy means many things to many people, but I used it in a very literal way for the purposes of the hierarchy to mean “freedom to move, act or think without assistance or constraint.” Generally, laws can only restrict the autonomy interest of individuals if they engage in activities that pose a greater level risk to the autonomy of others. Activities that risk death or grave bodily injury obviously pose the highest-level threat to autonomy. Nobody is permitted to engage in those activities against another except to preserve death or grave bodily injury to oneself or another. Activities that temporarily restrict bodily movement pose a lower level threat to autonomy. A restriction on your ability to move your arms is a lesser threat to your autonomy than the threat of bodily injury that your act poses to the other person. Your individual autonomy is restricted to preserve the other person’s greater autonomy interest. Moreover, the restriction is narrow and only prohibits your movement in a specific situation where it may cause physical injury to another person (significantly, a person who is not trying to cause you physical injury).

Under a collective autonomy approach, stay-at-home orders are justified, as are rules requiring people to wear masks in public. The restriction on movement and economic activity is outweighed by the potential grave bodily harm from a highly infectious disease. But this is only so long as the penalty for violating the rule is not excessive. For example, people should not be thrown in jail for failing to wear a mask in public. The penalty would be excessive given the nature of the risk. The harm caused from not wearing the mask is speculative – most people are not infected with the virus – and the punishment should fit the crime.

The pandemic has made clear that living in a society requires sometimes making individual sacrifices for the greater collective good.Yet, it is at times like these that we must be most mindful of preserving our civil liberties and guarding them against excessive police power

© 2019 by Nancy S. Kim