Dear Lord Sumption, I listened to your eloquent interview on Radio 4 this morning and thought I’d try, in my inelegant way, to offer a reply. I’m not, you might notice, a lord nor a jurist, but you argue that “it is the right and duty of every citizen to look and see what the scientists have said and to analyse it for themselves and to draw common-sense conclusions. We are all perfectly capable of doing that.” Indeed, I hope we are, but I also trust that the same rights and duties apply to citizens who wish to examine what our legal experts say and to analyse it for themselves and to draw common-sense conclusions.
So, if I may, I’d like to begin where you end, arguing “there’s no particular reason why the scientific nature of the problem should mean that we have to resign our liberty into the hands of scientists.”
Well, common sense makes me immediately wonder if that’s entirely correct. I can think of many cases where the scientific nature of a problem means that we do just that: resign our liberty into the hands of scientists. Change the word “scientist” to “doctor” and you should see my point. We routinely place decisions about the ultimate liberty of life over death into the hands of doctors and the law has generally found in favour of the doctors when it comes to making those decisions. “Patients yield up power to physicians because one has knowledge and the other is apparently ignorant. Doctors decide and patients follow” as one medical scholar noted in the BMJ. The same is true of engineers, aerospace technicians, and even, on occasion, mathematicians, who make decisions on which many lives can be saved or lost. This is the nature of expertise, science, and even, I’m sure, the law.
That, I think, is where I struggle with your argument. On the one hand, you argue that we have a right to act contrary to the advice of experts but, on the other, condemn those that do just that. You see, you also said that “anyone who has studied history will recognise here the classic symptoms of collective hysteria.” That statement assumes much, not least that you have yourself made a study of collective hysteria. In which case, surely you would allow that a common feature of mass hysteria is the complete absence of science. Indeed, hysteria, as defined in the OED as an “enfeeblement or perversion of the moral and intellectual faculties” is surely predicated on the lack of a “reason”, otherwise, it wouldn’t be hysteria. A child panics at the thought of the monster under her bed but what if the monster is real? Then it would be an understandable reaction to a threat.
The most famous example, perhaps, was the Salem witch trials, based on totally irrational fears, but most (perhaps even all) follow that pattern. They are often induced by tall tales that excite the public’s imagination; whether that’s Orson Welles’ “War of the Worlds” broadcast in 1938 or the many sexual abuse stories that got the public aflutter in the late twentieth century. The public’s reaction was not based on empirical evidence and the kind of scrutiny involved in the scientific method.
By those standards, then, the public’s current concerns about COVID-19 cannot be said to be hysterical. COVID-19 might be a mild condition to many who get it, but it is highly contagious. One is not acting hysterically by listening to the warnings of scientists or the predictions of our best data modellers who say that our healthcare system will soon be overburdened by people requiring specialist help. Nor is it hysterical to expect that the government acts upon the best evidence. It is certainly not hysterical to be critical of that minority who refused to abide by the government’s sensible (and surprisingly benign) requests for social distancing. Lastly, it is not unreasonable to be concerned as our nation’s death count rises in line with predictions and mimicks the death toll in Italy. We are already losing healthcare professionals to this pandemic. I am sure you would agree that it is not hysterical to be concerned about that
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What has been remarkable thus far, is the degree to which our country has come together. We have seen no riots, no protests, no anarchy. We have seen a sometimes fraught but always containable situation where most people have retired into their houses to wait for this storm to pass. Rather than echoing Donald Trump’s verdict that the “cure might be worse than the disease”, I would put it that the cure might just be working and in ways we don’t even expect.
On the other side of this crisis, we will be a better country, with a better understanding of many things – liberty included – that we once took for granted.
What does resemble public hysteria, however, are those that respond to the sudden flurry of media reports of police overreaction and are now crying “police state”.
Even if you are right to warn that we should never take our liberty for granted, what reason do you have for making these warnings now? Because the police tried to shame a few people who refused to stay at home during this pandemic?
Nobody in their right mind would defend these as examples of good policing but, just as we should look at trends rather than discrete data points when it comes to the daily cases of coronavirus, we should look at the trends around policing in this country. I believe they, along with all our public servants, have been a credit to our nation. To say otherwise is surely the overreaction here and, given the need for people to listen to the advice of epidemiologists, virologists, and immunologists, it is a dangerous one at that.