Cassandra Voices

Tag: Ronald Dworkin

  • Banksy and Protest Rights: The View from The Robing Room

    As I sauntered from the Old Bailey past the RCJ the Banksy painting caricaturing a judge attacking a protester was no longer even a ghostly shadow, but it very much remains in the public domain, after reports emerged that it had been reported as criminal damage.

    On September 25, on Old Brompton Road, a comprehensive exhibition of Banksy’s work opened, which brazenly included the mural stencilled onto a different surface. This raised all sorts of issues about the commercialization of art and the edge of protest, not to mention whether or not he should be prosecuted.

    Based on Fiat Justicia, Mr Bansky faces prosecution for the recent RCJ Mural as criminal damage. I also hear he may be charged with being in contempt of court, leading to his long anonymity being exposed. Being named and shamed is another feature of our hysterical times.

    Recently, a bit like the opening to a P.J. Wodehouse novel, an erudite discussion was held among learned friends in the robing room of Hove Crown Court, steered by the most venerable member, as to whether the t-shirts, now selling fast, of this auspicious work should be deemed the proceeds of crime. The consensus was that in the U.K., post-conviction, the seller is responsible. Perhaps that is fanciful, but you never know.

    Policy considerations were also broached, such as whether in prosecuting him would you create a martyr that would lead to more t-shirts being sold? Would the state then be complicit in facilitating crime not least by increasing his revenues.

    Charles Dickens, his work the subject of many copyright violations and thieving particularly by Americans in his lifetime, expressed the view in Bleak House that it was far, far better to have nothing to do with the law. Well, it is certainly far better for the law to have nothing to do with Banksy, or is it?

    The consensus in the robing room was that given he is profiting from the mural, there was a strong argument for a significant fine, with the trial perhaps being conducted through in camera proceedings, preserving his anonymity, with any receipts being diverted back into the criminal justice system.

    Further, the venerable member concluded that he was inciting protest. The discussion took place over an entire lunch, and if any of us were briefed it would have occupied many days of court time, but should it occupy any court time at all is the real question?

    Mr Banksy, I am reliably informed, arrived at around 4-5am masquerading as a delivery truck driver. There was just enough light to use his meticulously prepared stencil. It is not now simply guerilla art, but increasingly reflective on worrying times. Many people are in on the act.

    The recreated version of the mural by Diiego Rivera, known as Man, Controller of the Universe.

    Diego Rivera

    Among the greatest painters of murals was Diego Rivera. His famous mural in the Rockefeller Center in New York was taken down because of his cheeky insertion of Lenin contrary to the edicts of one of the citadels of world capitalism. They destroyed it in violation of copyright law. An integrity right protects a work from being destroyed, mutilated or defaced or put it in an inappropriate setting.

    Examples of violations include colorizing a black and white film such as The Maltese Falcon (1941), or including ad breaks during the Monty Python parrot sketch, or inserting cover ups of nudity, such as even in the Sistine Chapel, but outright destruction is rare. Indeed, there was uproar in Berlin when some of the murals on the Berlin wall were destroyed.

    The Banksy mural was an insertion of overtly political content in a work of art, and the destruction or censorship of protest art has always been a feature of oppressive regimes. So, was the reaction disproportionate or ill-thought out?

    Mr Banksy is a national treasure, and frankly as great an artists as any in England since Lucien Freud. I suspect any prosecution will backfire or has, revealing institutional incompetence and hubris.

    The Banksy mural has significant political implications and presents authoritarian judges and the state cracking down on protest, not least in response to legitimate public outrage over Gaza, but what’s good for the goose is also for the gander. It is legitimate political art, but the regulation of protest as opposed to protest art is more complex now.

    Jasper Johns’s ‘Flag’, Encaustic, oil and collage on fabric mounted on plywood,1954-55.

    Protest Rights.

    The flag of St George is also copyright protected, and very similar to the flag of Switzerland and indeed the Red Cross, but it has been traduced by maniacs spreading hatred and division. The visibility of the flag has increased significantly across England.

    It is now the case that English, Irish and indeed American national identity is as fragile as the American flag fractured and loose as in the Jasper Johns painting. The Irish tricolour is also a symbol of unity of green and orange, but is now potentially divisive. Extreme nationalism, along with racism, is one of the scourges of our time. It is a reversion in my view to the 1930’s – symptomatic of a new dark age.

    There is, of course, a marked distinction between genuine patriotism and the revival of tribalistic, exclusionary and racist nationalism. Not all patriotism to reference Jeremy Bentham is the refuge of the scoundrel.

    But racism and chauvinistic nationalism go hand in hand and generally morph into fascism. The target is the excluded other, now the immigrant. Nigel Farage is now proposing to remove those without a settled status.

    Timothy Snyder recently came off the fence in On Freedom (2024) labelling the alt-right fascists, after considering the etymology of the term. But is he also an enabler given some of the neoconservative views he has expressed?

    Let us cease bandying about anodyne terms like crypto-fascism and use language with precision and exactitude. There are now fascists and a gathering mob, but this has been engineered by, and is under the control of, others. Who then are the enablers is the crucial question?

    Is Banksy an enabler? I am not so sure

    Source: BBC.

    London Protests

    On the streets of central London recently I was reminded of three things: John Reed and Ten Days That Shook the World (1919), his blow-by-blow account of the Russian Revolution; the scene in Cabaret (1972) where, semi-fictitiously, Christopher Isherwood decides to leave Berlin after hearing a version of Horst Wessel being sung. Finally, surveying the hate-filled eyes I was also reminded of Leni Riefenstahl’s Triumph of the Will (1935).

    I would argue that a similar species of Irish hatred is more vicious but far less powerful in electoral terms, bu there is now a real danger of the extreme right winning power in the U.K..

    Dozens of police officers were injured at the protests, yet only twenty-five arrests were made.  The counter demonstrators, understandably smaller in number, were non-violent, and let us be clear that a right to protest is intrinsic to democracy. Peaceful protest that is, an idea as old as Gandhi or Martin Luther King. Yet there were 500 arrests made at the peaceful Gaza protests in early October.

    This casts the right to protest into doubt, or at the very least demonstrates a need for greater regulation and proportionality. The insurrectionist riots and arson attacks on accommodation related to asylum seekers in Ireland in recent times is also a case in point, demonstrating the necessity of regulating (violent) protest.

    The Just Oil protesters, with others to come, were convicted under the Police, Crime, Sentencing and Courts Act 2022 (PCA) of conspiracy to cause a public nuisance, in response to the M25 motorway disruption in November 2022. Judge Hehir dismissed the defence of mere political opinion and belief as excluded from the present English legislation.

    That decision undoubtedly opens a dangerous vista, but the crucial question is that of whether a demonstration potentially causes harm, and that one clearly could have caused harm, and it certainly caused a significant furore and inconvenience.

    “Lilies that fester smell far worse than weeds.”

    Orange lily

    In the famous common law prosecution orange lily case Humphries v O’ Connor (1864) plucking an orange order lily from a woman in the nationalist area of Belfast was deemed a justifiable police act and regulation of protest, as the offending lily had the potential to cause a breach of the peace. This occurs when an individual causes harm, or if it is likely that they will cause harm to another individual or property, or if it puts another person in fear of being harmed.

    As Shakespeare put it in Sonnet 94:

    For sweetest things turn sourest by their deeds;
    Lilies that fester smell far worse than weeds.

    But what harm or public nuisance has Banksy caused? He has frankly adorned RCJ with better artwork outside than there is inside. Is it really an incitement to protest in contravention of the law or a protest to survive?

    Ronald Dworkin, towards the end of his career, wrote an article on the Right to Ridicule peculiarly appropriate to Banksy. There are, for sure, limits, such as Enoch Burke silently or not so silently protesting outside his school. He is not an artist and most decidedly frankly a nuisance, disturbing children being educated. So perhaps certain forms of protest should be consigned to Mountjoy. But there are also demonstrators from Stop Oil, Gaza Extinction Rebellion residing, perhaps excessively, in custody in the U.K.. Now, perhaps a great artist in will be in there next. But that mural was created before 150,000 people turned up in central London.

    The great political artist of our time, a private and ostensibly decent man, should not be publicly prosecuted for making legitimate points of criticism, with a drawing that Goya Picasso, Schiele or indeed Hergé would have been proud of. Hergé’s TIN TIN books were about the Manichean divide between good and evil. So who is the demon today, the contemporary Captain Haddock?

    Banksy deserves an anonymous knighthood not public humiliation. He should be known by his self-designation and not outed by a magistrate’s court.

    Whether he should pay a fine for profiting commercially from the mural is a different question. After all, would he not approve of charges being pressed against the fascist mob that attacked the police?  Perhaps any proceeds should go to police wellness programmes?

    In the film Cabaret the Isherwood character says: “do you really think you can control them?” Well, Banksy do you? And are you encouraging them or inciting the mob, the robbing room sagely discussed.

    It is crucial to realize that the Populist alt-right and indeed at times the extreme left have served to reduce speech and protest rights in an increasingly vigilante age, and now use protest to destroy democracy. So be careful about admonitions of judicial crackdowns even through art. For many are using democracy to destroy the social democratic consensus. And fringe leftist protests such as Just Oil are not much better.

    So, the legal arguments about disproportionately cracking down on violent or even peaceful protests certainly are no longer as clear-cut as the mural might suggest.

    In the robing room the venerable member concluded that perhaps an arbitral solution might involve a private settlement, i.e. a charitable gift. But none of that settles the regulation of the right to protest, which is now increasingly fragile.


    Feature Image: Banksy mural, 8 September 2025.

  • The Relevance of Jurisprudence to Law Part 3

    The remains of unquestionably the greatest intellect of the nineteenth century, Karl Marx, are buried in Highgate Cemetery in London. I recently tossed a red rose on the site. I doubt whether Judge Gerard Hogan, to whom I have addressed previous articles in this series, or any other legal positivist, would do likewise.

    While positivists often engage, though disagree, with rights-based -thinkers such as Ronald Dworkin, most exhibit a level of incomprehension, and often outright hostility towards certain forms of Radical Jurisprudence. No doubt the often unclearly expressed ideas of late Marxism, structuralism and post structuralism often are a factor, but that is only a partial excuse.

    Noam Chomsky – himself a linguistic positivist – once made a comment to the same effect on these authors, exempting Michel Foucault. He had developed a rational understanding of Foucault, but none for example of Derrida, who many including myself regard as largely intellectually fraudulent. Indeed, many Cambridge University philosophers objected to the conferring of an honorary degree on him, although I believe there is an element of truth to his babbling on relative truth or foresight.

    This plan of Jeremy Bentham’s panopticon prison was drawn by Willey Reveley in 1791.

    Panopticon

    It is, nonetheless, easy to see why, as far as my harsh assessment of post-structuralism Foucault is exempted. Foucault makes very relevant contributions to Jurisprudence and the practice of law.

    First, the transplantation of Jeremy Bentham’s idea of the panopticon – the all-seeing surveillance prison such as Kilmainham in Dublin – is in Foucault’s view a depiction of modern society, where a uniform doctrine is enforced in schools, law courts and hospitals, leading to blind conformity.

    Foucault presaged the age of Surveillance Capitalism and 24-hour data surveillance in Ireland, achieved in camera in the Quirke Case through the representations of the Minister for Justice Helen McEntee. Thus, we have a global panopticon wherein the value of privacy and freedom is thrown to the wolves.

    Now our judges aside from Hogan, most recently in the Dwyer Case restricting the privacy right, ignore ECHR and EU law. This undermines an ideal of liberty, at least as old as J.S. Mill in modern times, and in fact going back to the Greeks. So, Foucault’s insight is not about postmodernism. It translates into the destruction of rights under Article 3 of the Irish Constitution and 8 and 5 of the Convention.

    The second of Foucault’s contribution is his book on madness in the age of reason. The fundamental tenet is that the Enlightenment / Age of Reason involved the necessity, intellectually and then institutionally, to confine the unreasoned – those who were called mad – into asylums. Well, who is mad and who is clinically insane?

    The recent US Democrat convention, with the rather wonderful Mr Walz speaking from the heart on middle-class US conservatism about banning books and depriving choice stands against that Twitter conversation between Musk and Trump.

    The problem of reason and madness is also clear earlier in Ken Kesey’s masterpieces ‘One Flew Over The Cuckoo’s Nest’ (1962). What happens when the lunatics have taken over the asylum and a dissident voice says no? What of when the man or woman of reason, the pursuer of nuance and grey, the boy who cries wolf, the creature of the Enlightenment is locked up by those who are in fact self-interestedly insane.

    Foucault was apparently not on the UCD Jurisprudence syllabus in the late 1970s. A short journey to the Arts block to encounter Richard Kearney’s expertise in Continental Philosophy would have been beneficial.

    Marx and Engels in the printing house of the Neue Rheinische Zeitung. E. Capiro, 1895.

    The Crucial Figures

    The crucial figures of radical jurisprudence are not the structuralist, even Foucault, but the great Marxist theoreticians. For Marx law was a mirage, an ideology upholding the interests of the bourgeoisie, He considered it a mere superstructure determined by the economic base. Law, he observed, served the interests of the ruling class.

    Thus, in Marxist terms Hogan’s analysis of Kelsen is a form of intellectual masking or ideology justifying a form of state authoritarianism, which Marx would surely have interpreted precisely as the Populism of the petit bourgeoisie. No judicial deferral should be granted to the popular sovereignty of the mob.

    Marx though is not consistent about law. He argues that in the properly ordered Communist society there would be no need for laws, as we would spontaneously co-operate in our Communist Nirvana. But at times he concedes, inconsistently, that law is not always bad, and a close textual analysis of his views on property rights, and the freeing up of the alienation of estates to facilitate greater capital, shows that sometimes the superstructure can influence the base, and thus influence economic relations.

    So, what of Ireland controlled by a landlord class achieving nothing and facilitating careers going nowhere except to Microsoft and criminal banks, or the legal service class who act like vultures preying on the vulnerable on behalf of the powerful?

    The legal realist Oliver Wendell Holmes in his famous rebuke to unregulated free market economics in Lochner (1905) said the Fourth Amendment does not enact Mr Herbert Spencer’s social statics, and nor should the Irish Supreme Court enforce the interests of the commercial fat cats of Aran Square or elsewhere.

    Many Marxists, such as Lenin, saw the necessity for rules in a never-ending interregnum on the way to a Communist Utopia, which is never to be achieved. More pragmatically, the fundamental question for any judge which the Marxists pose is: whose interests do the rules serve?

    The Marxists influenced the critical legal studies movement, which to some extent educated me, adopting the radical indeterminacy thesis, an idea borrowed at one level from the legal realists. They argue that given the plasticity and malleability of rules, legal outcome can be very unpredictable and in fact subjective.

    There really is no such thing as a ‘plain fact’ or literal interpretation of almost any legal text. To avoid nihilism we should invoke moral principle as a corrective.

    Alienation

    The term alienation coined by Marx more generally to describe exploitation of workers serves as a warning as to how our government is destroying both the working and middle classes,

    Subsequent Marxist have been more approving of law. The legendary Antonio Gramsci, while imprisoned by Mussolini, adopted the phrase ‘hegemony’ to suggests as necessary a form of co-operation in law, politics and culture between the proletariat and the bourgeoisie. Now this coalition argument suggests law can be used as an instrument of social change. That depends on a desire to change for the good.

    One wonders whether the new, petite bourgeoisie-aligned Keir Starmer government in the U.K. should be a source of optimism or seen as a false dawn? More taxes on the wealthy, or further savage austerity for the poor?

    The Rule of Law is a central concept in jurisprudence, though hotly contested, and Marx aside, it has dominated the thinking of some of the main Marxists thinkers of recent vintage.

    In his codicil to Whigs and Hunters (1975), E.P. Thompson expressed a view on the Rule of Law as an unqualified good, which at times could check arbitrary authority. That of course assumes the Rule of Law exists in an ethical polity. It is not that evident in Ireland today as core principles are violated or improperly implemented.

    Thus, the independence of the judiciary is not obvious in Ireland, the use of in camera proceedings, akin to the promulgation of secret laws, is a cardinal violation of the notion that justice must be carried out in public. We also find an apparent tolerance of police corruption, the abandonment of substantive rather than formal equality, and indeed the abandonment of constitutional rights.

    Thompsons argument is premised on the idea that the judges are willing to enforce the rule of law, often with the effect of unsettling vested interests, as in the recent, painfully prolonged, Assange case. Irish judges are more likely to do the opposite.

    Jürgen Habermas

    Habermas

    Jürgen Habermas is, as ever, a crucial contemporary thinker, and, with all due respect to Gerard Hogan’s veneration of Kelsen, he is not just the world’s leading intellectual figure but the towering German intellect along with Thomas Mann and Kafka of the 20th century.

    Since Habermas abandoned the Frankfurt school, and thus post-structuralism, he has become, for over fifty years, one of the great proponents of the Rule of Law and legalism. He stresses the importance for judges not to subvert rights and parliamentary laws protecting civil liberties including the right to protest, viewing civil disobedience as central to revitalizing democracy.

    In contrast, the knee jerk reaction in Ireland and the UK has been to give more powers to the police to regulate dissent.

    Habermas’ other idea of communicative action, borrowed at one level incidentally from the arch positivist Austin, is the elaboration of the idea of ideal speech. His ideal for the vindication of speech rights is the eighteenth century salon. The ideas of communicative action in legal and judicial terms blends into the ideas audi alterum partem (‘listen to the other side’), and the obligation not to be either subjectively or objectively biased.

    Ideology, a term adopted by Marx, has been reinterpreted by Slavoj Žižek, drawing on another Marxist in Lacan, as ideological misidentification. In both instances, and applied to law, there is the sense that the bureaucratic class are engaged in false consciousness or deceptive ideas.

    Lon L. Fuller, who is not a Marxist but a natural lawyer, argued that once a legal system has not a tinsel of legality left, but enforces barbarism, it is no longer a legal system.

    To round the series off, a Marxist would fully understand the rage of Populism, but not necessarily approve of it. Of course pure Communist societies do not work, but nor does pure neo-liberalism. Indeed, Ireland is not working except for the landlord class.

    What does work legally ethically and morally is a social democratic Just Society advocated by the master John Rawls. What does work is Sweden, Denmark, Norway and much of northern Europe, where people are not in Marxist terms commodified and viewed as product, but in the moral Kantian sense things in themselves.

    John Rawls intellectually speaking would never have existed but for Karl Marx and a difficult thing for a legal positivist practitioner to realise is that Marx is in fact the greatest of all legal, political and economic philosophers. This is not to say he is entirely correct or a model to be followed in overall societal regulation, but a useful corrective to interpret laws and asses whose interest they serve and, if necessary, to bend rules to achieve socially just outcomes.

    Dworkin in fact argued that the South African judges during Apartheid should potentially have lied about the content of a racist law. I also agree or rather at the very least that they should have interpreted it to bring about socially just outcomes.

    Marxism at its best focuses on civil and in particular social and economic rights, and the judiciary responsibility to enforce them into the law and the Constitution, to the extent that this is consistent with the Rule of Law.

    Feature Image:Tomb of Karl Marx, East Highgate Cemetery, London.

     

  • The Relevance of Jurisprudence to Law Part 2

    In the first part of this series, London-based barrister, who taught Jurisprudence for sixteen years in the Honorable Society of the King’s Inns in Dublin, David Langwallner takes issue with Irish Supreme Court Justice Gerard Hogan devotion to Legal Positivism, instead arguing morality and politics should inform the law. He elaborates further on that debate in this article.

    This piece details what I believe is absent in the form of Legal Positivism that has been advocated by Supreme Court Judge Gerard Hogan. Indeed, there is a wider blind spot among the Irish legal establishment on whether jurisprudence should go beyond Legal Positivism, into the territory of Natural Law.

    A few years ago this debate might have been confined to the classroom and seminar, but it now assumes central importance.

    There is currently a crisis of legitimacy in the Rule of Law worldwide, unprecedented since the 1930s, and Ireland is not exempt. In my view Positivistic limitations on the subject is a sign of intellectual infantilism – an unnecessary curtailment of the boundaries of law, and what it means. Worse still, Legal Positivism contributes to a false assurance of just outcomes.

    The Nuremberg Trials.

    The Fundamental Question of Jurisprudence

    Let us thus address the fundamental question of jurisprudence: what law is, and what that matters in its practice?

    For a Positivist, the essence of law is legal fact, if it stems from an authoritative source often referred to as the Sovereign. Or let us call it, as Hans Kelsen and Hogan do the grundnorm (‘basic norm’). Then the law is divided into rules conferring powers on officials, within a given system, to apply them. This process occurs at a remove from politics or morality.

    H. L. A. Hart, the other leading Positivist with Kelsen, calls these rules either primary or duty imposing rules, or secondary or power conferring rules, which often rely on enforcement by adjudication by tribunals or courts, but not, it seems, by interpretation. That is the initial fallacy.

    Thus, according to Legal Positivism the job of any official is to apply rules literally. Giving, what Ronald Dworkin called, ‘plain facts their plain meaning.’

    Yet, very little is ever plain, and as the leading jurist of the 20th century, not Kelsen but Dworkin, maintained law is a question of the interpretation, not the application, of plain facts. It is also about principle not authority. And the texture of law is slippery and often as unclear as mud. Hence legitimate legal interpretation is a matter of law, not purely political philosophy. That is the crucial point and the one Hardiman and Hogan, among other UCD Positivists, fail to understand.

    Consider this in a different context. Imagine a witness says someone’s hair is dark, the question becomes how dark on a scale of 1-100, and was there any grey in the darkness? There is invariably a lack of clarity on any matter, and even the arch-Positivist Hart conceded an open texture or fuzziness even to statutory rules.

    That concession by Hart – as Dworkin correctly maintains – undermines his whole theory. For Hart, where the rule is fuzzy, he suggests a judge use his discretion. Dworkin correctly queries whether discretion per se should form any part of a legal dispensation.

    In fact, given that many rules have an open texture – in that they are capable of various interpretations – the reliance on an untrammelled or open-ended discretion, as Dworkin maintains, undermines Hart’s conception of Legal Positivism. The natural lawyer John Finnis also correctly points out, in parenthesis, a weakness to Hart’s internal point of view, crucial to his Positivist agenda. To save Legal Positivism from morality Finnis points out, by using normative language such as ‘ought’ or ‘should’ Hart is conceding a moral component to law.

    Contrary to Hogan’s position on legal interpretation, Dworkin contended that it must involve political and moral interpretation, and not be an exercise in literalism or strict constructionism.

    To make sense of law as a corpus and not rely on discretion per se law legal interpretation must be an exercise in principled interpretation. Only then can it create a seamless whole that is not a web of deceit, or draconian rules, but one of justice.

    Adolf Eichmann

    Slow Train

    The abandonment of principle and constitutional rights is a slow train to the sort of cognitive dissonance embodied in the likes of Adolf Eichman, when he argued he was only doing his job. This is the divorce of officialdom from morality.

    Such issues led to the famous Hart-Fuller Debate on the relationship between law and morality and to a consideration of retroactive laws. Fuller in effect maintained we owe no obedience to laws without a tinsel of legality. Even Kelsen applied retroactivity exceptionally in the case of the Nazis.

    Dworkins progenitor and mentor is John Rawls, who is decidedly back in fashion in the academic community. Not that his ideas have ever gone away entirely, but his critique of neoliberalism and his conception of a just society seems more pertinent than ever,

    Daniel Chandler in his recent book Free and Equal: What Would a Fair Society Look Like? (2023) argues that there is a broad approval among academics around the ideas of the maximisation of liberties; a measure of discrimination in favour of the disadvantaged; and an element of putting money aside for future generations to meet the economic and environmental devastation of neoliberalism. To our power brokers, however, these principles have little or no significance. Seemingly, as Chandler contends, the more Rawls gains traction in the academic community, the less his ideas are implemented by our rulers.

    Of course, Rawls is a political philosopher and though he does address law, he does not do so with the precision of Dworkin.

    For Dworkin the answer is very clear: our judiciary have a moral and principled obligation to interpret laws in a socially just way to protect the innocent, the disempowered, the accused and sanction the government when required. This also includes the moral obligation not to defer to a Separation of Powers, but to declare a law unconstitutional when it is called for. It also includes a non-textualist approach to read rights into the constitution as a living instrument, to protect the rights of the citizen, and non-citizen.

    In Ireland the lure of Legal Positivism and the abandonment of the wisdom of Rawls and Dworkin among the judiciary has led to the non-enforcement of social and economic rights. This has contributed to a housing and homelessness crisis, tearing apart the very fabric of our society and fuelling the rise of the far right.

    The judiciary could have easily followed Canadian and South Africa as well as Indian Jurisprudence, which either give vitality to the Right to Life contained in Article 2 of the Constitution, by including the quality of that life. They might have also revived Article 45, and thus the social contract.

    Ensnared by banking interests, debt, and agency capture, the courts have failed to intervene. These decisions and non-decisions are unforgiveable, immoral, and even borderline criminal.

    Further, In Rawlsian terms They have not maximised rights over absurd limitations on public and common good considerations, thus systematically destroying due process and privacy rights, ignoring or sidelining EU and ECHR law along the way. They have given ever more power to our police forces, standing idly by as 24-Hour Surveillance takes place, with more special courts to come, amidst an unspecified emergency.

    The Four Courts, Dublin.

    Long Dead Values

    Our gatekeepers have deferred to long dead values. They have not utilised the constitution progressively, and failed to protect non-nationals adequately. I suspect they will curtail freedom of speech if the hate speech bill passes.

    Since Adrian Hardiman, and indeed before, they have been utterly useless in upholding the constitution.

    Part of the Positivist agenda is to focus on Positivistic realism. Realism, though useful in some respects as an analysis of trial practice and what courts do, justifies cynicism and above all Populism. If there is one idea that captures the leading realists Karl Llewellyn’s conception of policy, it is the will of the majority, or what people want. What Hogan terms the grundnorm of popular sovereignty.

    The problem with deferring to Populism in our present Dark Age is that we are dealing with agency capture of the media, excessive blind sheep obedience, alt-right mob rule and the enforcement of it through legislation, such as anti-immigrant measures or mass surveillance.

    It is in fact important for judges to be, as Dworkin put it, philosopher monarchs, in the sense of vindicating rights against tyranny. Thus, gatekeepers must protect rights against tyranny and realise that, as Hannah Arendt put it, we should have the right to have rights.

    In Ireland the judiciary defer to Kesean popular sovereignty and judicial restraint. It is correct to see them as accomplices to evil. Even Hogan, our finest judge, risks selling his soul to the devil.

    Justitia in the Superior Courts Building in Budapest, Hungary.

    Are Rules Important?

    The other fundamental question is whether rules are really that important. The realist scholar Roscoe Pound called them merely pretty playthings. This is the view, commonly held among realists, that a judge reaches the subjective conclusion, dictated by policy considerations and then makes the rules fit the facts. In short, the rule is an intellectual justification of a conclusion. This is a view I have some sympathy with, but it again demonstrates the obsolescence of black letter law.

    Crucially, Dworkin gives rules or plain fact more weight, and thus does not undermine legality but argues that a rule or even the plain fact of a rule is subordinate to the interpretation of principle. Thus, the judge is obliged to attempt to achieve the best creative and constructive sense of the law as a matter of principle, where principles have dimensions of weight and importance, and rules do not.

    The important point comes where there is a conflict between a rule and a principle. Here the principle, whether legal or moral, prevails.

    Dworkin points to the Lord Atkins Neighbour principle in the foundational case in Tort Law Donoghue v Stevenson (1932), to the effect that constitutional values are principles in the law. Indeed, a crucial application of principle is where a law is declared unconstitutional. That is when a Positive law struck down by a principle. Or when the principles of the ECHR are enforced, which we rarely see, rendering our constitution a nudum pactum – a promise that is not legally enforceable.

    In this respect by its embrasure of literalism and historicism in judicial interpretation, Legal Positivism negates the spirit of the law, and deems crucial issues non justiciable. It does not protect matters of principle and rights, and fails to develop the constitution as a living instrument to adapt to changing circumstances.

    The negation of this development of constitutional rights has led in America to the justification of handguns, in that they were commonly in use at the time of the American Revolution by the historicist Scalia, and the over-ruling of Roe Versus Wade, as inter alia in a specific context it sought to graft a non-literal privacy right into the constitution of the US.

    Dworkin’s principled interpretation, unlike Legal Positivism, takes rights seriously and takes issue with legal realist premises, based on majoritarianism, that rights are subservient to policy consideration.

  • The Relevance of Jurisprudence to Law Part 1

    This article is a response to Supreme Court Justice Gerard Hogan’s Annual Hale Lecture in Trinity College, Dublin in November 2023 on the on the topic of: ‘Grundnormen in UK and Irish Constitutional Law,’ and I thank him for sending it to me.

    The grundnormen is a creation of the legendary Austrian jurist Hans Kelsen. He is viewed by many as the greatest figure in Jurisprudence of the 20th Century. For his own part, in the mould of Justices Niall McCarthy, Adrian Hardiman and Declan Costello, Gerard Hogan is, in my view, our only current top class Irish judge, and a man for whom I have great respect.

    However, Hogan’s paper, although a brilliant piece of work, is profoundly unsettling not as such in what it is right about, but in terms of what it is wrong about, largely by omission or occlusion, i.e. what it does not say.

    He frankly concedes that the UCD lectures he received in jurisprudence failed to equip him with an understanding of the relevance of John Rawles or even The Natural Lawyer, John Finnis, nor does he reference radical jurisprudence, or indeed the éminence grise of 20th century legal philosophy, Ronald Dworkin. Thus, Hogan emerges as an arch positivist – as of course was Kelsen – a literalist and strict constructionist. It is fair to describe him as a black letter lawyer.

    Kelsen was the purest and most consistent of the positivists in emphasising the precise distinction between law and the domains of politics and morality, with one significant aberration on which more later. It is called a pure theory of law, Kelsen argued, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.

    Hans Kelsen 1881-1973.

    Kelsen: The Pure Theory of Law

    It is perhaps unsurprising that one of Hogan’s instructors in jurisprudence while in UCD, Professor John Kelly, in a superb posthumous A Short History of Legal Theory (Oxford University Press,1992), expresses equally bafflement with post-positivism. It is merely an afterthought in that book. Well that is UCD.

    Likewise, consider Adrian Hardiman’s apparent chastisement of John Rawls in his judgment in the seminal 1991 Sinnott case for viewing political philosophy as a branch of jurisprudence:

    [t]heorists of this view consider that they can provide a body of principles which can be interpreted and applied by courts, to the virtual exclusion or marginalisation of the political process…I[f] judges were to become involved in such an enterprise, designing the details of policy in individual cases or in general, and ranking some areas of policy in priority to others, they would step beyond their appointed role.

    Also, the reference to Lord Denning’s subtle dismissal of jurisprudence at the outset of Hogan’s paper is at one level a revelation of the standard wisdom of practising lawyers that only positivistic jurisprudence is relevant to court cases.

    When the U.K. Supreme Court overturned Boris Johnson attempt to suspend parliamentary scrutiny by proroguing it, Lord Pannick KC, the advocate in the case, gave a most revealing and rare interview after the event. In a sense Hogan’s argument is about where they stretched matters too far. I disagree.

    The problem with Hogan/Kelsen, and positivism more broadly, is, fundamentally, the cleavage between law and morality and/or law and politics, which are treated as if they are separate domains and not relevant to the subject of jurisprudence.

    Hogan also purports not to understand the Natural Lawyer. When it comes to John Finnis I agree. Finnis argues unconvincingly that the law should reflect self-evident goods such as marriage involving sexual congress, which has as its aim the production of children. In short sex for the sake of sex, not for conception, is not good, because it does not conform to the common good of friendship, which is intrinsic to heterosexual congress within marriage, or the good of parenthood.

    Jeremy Bentham like many positivists regarded natural law as ‘nonsense upon stilts;’ or as the other positivist John Austin suggested: if you invoke in a court room that an act is contrary to natural law a judge will indicate the inconclusiveness of your reasoning by hanging you. Many are also sceptical, as they ought to be, of inserting the values of The Iona Institute into the Irish Constitution.

    But that does not answer the question of morality or politics as an aspect of jurisprudence by a process of legitimate legal interpretation. This is the interpretation of texts in the sense of the grand style judge, mentioned by Karl Llewellyn, who defers not just to literalism, but also to policy and principle.

    Thus, Hogan effectively dismisses John Rawls and Ronald Dworkin, Marx’s Grundrisse and the legal realist perspective on policy from legal interpretation. Hogan also falsely invokes Oliver Wendell Holmes as a positivist. He was in fact the founder of legal realism – the forerunner to Llewellyn – who said, ‘The prophecies of what the courts mean in fact are what I mean by the law.’

    It is, however, brave of Hogan to attempt to define the mystical grundnorm. In Ireland it can be interpreted as the Constitution, based on popular sovereignty, or parliamentary sovereignty in the UK. But at its most abstract level the grundnorm is that which is responsible for the historically first constitution, in Kelsen’s own words.

    So, why does that create problems? First, and not least, the concept of original intent and the intentions of the Founding Fathers, is intrinsic to US jurisprudence, especially through the likes of Amy Coney Barrett. This involves a deference to long dead people or long dead intentions in different historical circumstances, an approach which Ronald Dworkin has rightly criticised.

    Kelsen, like indeed Hogan, was in an extracurricular sense far from apolitical. He was a Jewish intellectual and supporter of Weimar Germany. However, he believed, as Hogan does, in the essential goodness of the state. Although, in fairness Hogan has sagely warned about the denudation of due process by the Irish judiciary. In my opinion Kelsen was, and Hogan is, over-wedded to the view that states have duties to allow rights, but only on its conditional fiat. I cannot accept that at face value for it assumes the state apparatus in its present incarnation protects rights, which in the case of Ireland it clearly not the case.

    It assumes the Irish state has a tinsel of legality. Yet with our corrupt police force, dysfunctional justice department, populist leadership, and compliant judges we are entering a period of anarchy I fear.

    The Nuremberg Trials.

    Nuremberg Trials

    Curiously, Hogan does not mention Keisen’s famous moral detour, where he contorted positivism to justify the jurisdiction of the Nuremberg War Crimes Tribunal. Although Kelsen fundamentally disagreed with the legal basis for the assumption of authority and the way in which individual responsibility was not more differentiated, he defended the Nuremberg Trials. Contorting the principle of retroactivity, he argued the Nazis knew at the time what they were doing was immoral and not innocent. Thus, he created an exception to retroactivity, which is a cardinal violation of positivism, and indeed that amorphous notion, the Rule of Law; for which he has been heavily criticised by other positivists such as Joseph Raz.

    Hogan quotes another positivist, Jonathan Sumption at length in dissent at the prorogation of parliament case around the necessity to defer to parliament and the Rule of Law, or ‘the people’ as in Ireland. This should apply only if parliament is entitled to deference, which it is not in my view in Ireland, and only marginally so in the UK.

    Judicial review should protect against executive action or ouster clauses removing the jurisdiction of the courts, as in the UK. The Irish courts do not apply judicial review with rigour, and certainly not in a fashion similar to the mandatory orders in South African or India to enforce shelter, housing and health care rights. They also defer to the notional expertise of immigration tribunals and police decisions.

    Hogan has previously referenced the obliteration of due process in Ireland, and indeed the constitutional dispensation has provided scant support for those whose privacy rights have been violated.

    It is also notable that Hogan discusses the jurist, Carl Schmitt. Schmidt famously argued against emergency power clauses and secret laws, and yet our courts in camera last year approved of twenty-for-hour surveillance of the entire population, and we await the extension of the Special Criminal Courts. An unspecified emergency has been referred to by Minister Helen McEntee. Perhaps Hogan knows what this is.

    John Rawls 1921-2002.

    John Rawls

    In my view, the most important book of political philosophy since Karl Marx’s Grundrisse is John Rawls’ A Theory of Justice (Harvard University Press, 1971).

    The Rawlsian approach is to pose a question: where people are placed behind a veil of ignorance wherein they cannot know what their personal circumstances will be, how would they chose to order their society?

    He suggests that most people would choose the maximum number of liberties, as they would not enjoy living in a society where civil liberties are not adequately protected. Secondly, he argues that most would choose some measure of wealth edistribution in favour of the disadvantaged.

    If you were to be born a sub-Saharan Africa, or Ireland for that matter, you would surely want some measure of social protection. This principle is despised by neoliberals, and is central to the arguments in favour of housing rights, health care rights, food rights and a civilised society.

    Thirdly, Rawls argues for equality of opportunity and the elimination of self-advancement based on birth, family ties or social position.

    Rawls adds an additional idea, The Just Savings Principle, wherein we cannot denude the Earth for future generations. However, Amartya Sen, in The Idea of Justice (Harvard University Press, 2011) argues that Rawls fails to address the reality that the achievement of a Rawlsian society is resource dependent. Clearly, we need to build a just society based on our capacities and needs.

    Ireland is among the richest countries in Europe, yet successive governments have permitted rampant homelessness and moveable refugee shelters. Surely these ongoing violations require mandatory orders?

    Codicil

    As a codicil, Hogan references the Irish Constitution, and has written the definitive text on the subject, but at this stage all that wonderful analysis seems to amount to a Tristam Shandyesque cock-and-bull story. The problem is positivism: positivism in an age of draconian laws; positivism in a crypto-fascist age.

    Thus, when Hogan suggests popular sovereignty as a grundnorm, he should look squarely at the Gorgon’s Head and the rampant Populism that neoliberal policies have produced.

    Populism is not an acceptable juridical dispensation when all civility is lost, as in fact Sumption hitherto argued. The law becomes, as the jurist Eugen Ehrlich argued, in a criticism of Kelsen, a mask for brute force. We are right because we are powerful: macht geht vor recht as Bismarck put it.

    The fundamental questions are whether the gatekeepers, including the judges, are really aware of the social realities, and are they attempting to achieve a just and decent society. Gerard Hogan should bone up on Rawls, Dworkin, Legal Realism and even Marx’s Grundrisse, in my view a far more convincing abstract analysis of the role of law in society than Kelsen’s Grundnorm.

  • The Importance of Public Debate

    At a recent debate organised by the English-Speaking Union (ESU) at its HQ, Dartmouth House in London, we considered whether the British government’s response to Covid placed too great a priority on security rather than liberty. Naturally I took the liberty side of the argument.

    I expressed the fear that such a public forum as the ESU had convened could represent an interregnum, or lull in the storm, but hope springs eternal.

    A central hallmark of a democracy is freedom of speech. In terms of the First Amendment to the US Constitution, Anthony Lewis argued free speech should act as a search engine for the truth. Ronald Dworkin argued that free speech is a condition for legitimate government, and a counterweight to hysteria and unreason. Stephen Sedley, an eminent English judge, called it the lifeblood of a democracy. Freedom of speech also opens government and private enterprise to intense scrutiny. Above all, it encourages diversity and tolerance.

    Christopher Hitchens.

    Right to Ridicule

    It is not for the faint of heart. Christopher Hitchens remarked that freedom to speak inoffensively is meaningless, while Dworkin insisted on a right to ridicule.

    The overarching argument for speech rights was expressed beautifully in extremis by Hitchens when he said, ‘if you disagree with me that is your prerogative, so stand in line while I, rhetorically, kick your ass.’

    Conflict is resolved best through argument with the truth sacrosanct, ideally via open-ended public debate.

    This should not merely be rhetoric, but include arguments of substance. And the ESU provides, or can provide, that forum. Perhaps uniquely so. Indeed, it was heartening to encounter a multi-generational debate that included insightful youthful interventions.

    In retrospect, Hitchens represents the tail end of a tradition beginning with his hero Thomas Paine, mediated through his other great hero George Orwell, and culminating in him through a rich tapestry of public intellectuals and journalists, who fundamentally believed the pen to be mightier than the sword: that speech and words matter.

    Alas today speech has degenerated in the popular press into public titillation and gossip. It is also noticeable that the great traditions of investigative journalism, evident during the golden era of the Washington Post under Katherine Graham and The Times under Harold Evans, is in serious decline. Today most investigative journalism is a sham. The intellectual culture of the press has been degraded beyond belief.

    Social media is now a form of speech-driven pornography, where legitimate and illegitimate expressions of speech are proving impossible to disentangle. Character assassination and casual defamation have become the order of the day. The Internet may be a force of liberation in some respects, but also permits public display of ever more bizarre and outlandish commentaries. Mark Zuckerberg has unleashed a Promethean conflagration that remains untamed.

    Today’s emphasis on brevity and soundbites in politics conceals how the truth often requires explanation, as it is often nuanced.

    Aneurin Bevan talking to a patient at Park Hospital, Manchester, the day the NHS came into being in 1948.

    Like paying a visit to Woolworths…

    Aneurin Bevan, as good an orator as Churchill, once remarked that listening to a speech from Labour leader Clement Atlee was like paying a visit to Woolworths: ‘everything was in its place, but nothing was above the value of sixpence.’ To be convincing speech should have the necessary brio to rouse an audience.

    From Jeremy Bentham’s Speech Acts, Jürgen Habermas, develops the crucial idea of Ideal Speech or Communicative Action. This is an idea that speech should be formal, and not tainted by an unthinking recourse to ideology. He also suggests that such dialogue in the tradition of the Enlightenment salon will provide technical outcomes that are also morally purposeful.

    In Communicative Action he wrote: ‘Speakers coordinate their action and pursuit of individual (or joint) goals based on a shared understanding that the goals are inherently reasonable or merit worthy.’

    It succeeds:

    insofar as the actors freely agree that their goal (or goals) is reasonable, that it merits cooperative behaviour. Communicative action is thus an inherently consensual form of social coordination in which actors “mobilise the potential for rationality” given with ordinary language and its telos of rationally motivated agreement.

    Although not all speech should have to be taken seriously, it is important that a forum such as Dartmouth House is maintained for popular shibboleths to be dismantled in public debate.

    George Orwell.

    Doublespeak

    So, propaganda should not be taken seriously, nor modes of advertising, without close and detailed inspection. The opinions of many putative experts fall under the same category. Certainly, a little knowledge is a dangerous thing.

    The use of language – however cloaked in notional expertise – to undermine freedoms is a very worrying development. The employment by officialdom of complex legal discourse and manipulation of language may represent the onset of what George Orwell referred to as ‘doublespeak’. This can be exposed in civilised public debate in a neutral forum.

    A certain degree of puff and blow will always be found among business-people. Advertising lubricates the wheels of commerce, but when almost non-existent standards permit multinational corporate entities, including the pharmaceutical sector, to fabricate, falsify and frankly lie, thus precipitating financial and environmental collapse, this may represent a return to the dark ages.

    Sadly, mainstream political debate has disintegrated. Notably, Donald Trump and Hilary Clinton engaged in a travesty of a public debate before the US Presidential election of 2016. It was more like a staged reality TV show. Its nearest equivalent was the format of a farcical game show, such as the Jerry Springer Show.

    Thus politics has become part of the entertainment industry. Despite his Classical education, Boris Johnson invokes Peppa Pig before business leaders.

    So, an unconditional respect for freedom of speech should be offset by an understanding that certain speech does not warrant protection. Nonsense is best resolved by forensic debate – cutting through crap in common parlance.

    Surveillance Capitalism

    The criminalisation of unpopular opinion is a worrying feature of our times, and it is ‘subversives’ such as Julian Assange – along with those who dared to hold a referendum in Catalonia – that are accused, prosecuted, and convicted of treason. It is these dissidents that need protection.

    Under the Facebook and Google dispensation people become products to be profiled and mined, a point made brilliantly in Shoshana Zuboff’s The Age of Surveillance Capitalism.

    Moreover, political correctness has also led to the intensification of extremism. I would argue that this includes attempts by the transgender lobby to ban esteemed academics from the airwaves or campuses. ‘No platforming’ undermines public debate, as do unsubstantiated complaints to academic authorities that lead to the removal of a radical professor.

    So, when in Georgetown University certain radical professors indicated they were far from unhappy at the death of the arch conservative Judge Scalia, their conservative colleagues sought their removal on the basis that the ‘snowflake’ generation of easily upset students would be offended at the disrespect.

    We must maintain a right to protest, engage in civil disobedience and crucially – in an increasingly controlled and technocratic age – the right to offer truth-bearing, fearless and independent criticism.

    KKK rally near Chicago in the 1920s.

    The Limits of Freedom of Expression

    Speech has its outer limits, where there is a clear and present danger of imminent lawless action. This tension is explored in Snyder v Phelps, where a fundamentalist Christian group demonstrated outside a gay serviceman’s funeral.

    Upholding speech rights, the Court concluded that:

    Westboro believes that America is morally flawed; many Americans might feel the same about Westboro. Westboro’s funeral picketing is certainly hurtful and its contribution to public discourse may be negligible. But Westboro addressed matters of public import on public property, in a peaceful manner, in full compliance with the guidance of local officials. The speech was indeed planned to coincide with Matthew Snyder’s funeral, but did not itself disrupt that funeral, and Westboro’s choice to conduct its picketing at that time and place did not alter the nature of its speech.

    Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

    Moreover, in Brandenburg v Ohio 359 U.S 44, the Court went so far as to protect even racial abuse at a Ku Klux Klan ‘rally’ held at a farm in Hamilton County.

    One film showed twelve hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of African-Americans and, in one instance of Jews.

    The Supreme Court concluded that this was speech protected under the First Amendment on the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    In contrast, the ECHR will not protect either racist speech or Holocaust denial. And even the ESU may feel the Americans went too far.

    But the detailed US decisions show how far the US courts are prepared to travel to protect speech. It is an important point that it is the speech we most dislike and most disagree with that needs the most protection.

    Village stocks in Bramhall, England c. 1900.

    Enemies of the People

    Whistle-blower legislation protects those who want to expose official corruption and protects speech. However, as I have found, the spectre of criminal prosecution under Official Secret’s legislation is always a suspensive and possible threat. Anyone blowing the whistle must evaluate the risk of prosecution, including the almost inevitable consequence of job loss and ostracism.

    Henrik Ibsen’s Enemies of the People – perhaps uniquely in his oeuvre – was overtly political. The premise is simple: a prominent and well-connected local engineer whose brother is the town mayor is asked to conduct a survey of the waters of the town. The town in question has become famous as a spa resort attracting a great deal of tourism, but when he tests the waters, he finds that they are polluted and informs the town and indeed his brother.

    It is the reaction to this that is interesting. Rather than lauding him and complimenting him for his finely attuned sense of ethics and correct analysis, they turn on him with ever-increasing ferocity. A storm of hatred is unleashed.

    He will destroy the local economy. Their livelihoods will be affected. The industry of the town will be negated. He is shunned, ostracised, victimised. His family is torn apart, and he becomes an ‘Enemy of the People’. The mob descend in all their unfettered glory. Sound familiar?

    Thus, we must protect freedom of speech as it vitalises a democracy, but we must also recognise the rules of civic discourse.

    Yet I fear that a great tradition of oracy, public communication, rationalist discourse and generalist interest is in decline: usurped by the purveyors of false information, false speech acts and blandishments.

    If the English-Speaking Union can revitalise the young with a passion for genuine public communication, it will be performing a great service, training a new generation of professionals in the essential and transferable skills of advocacy, public communication and, above all, respect for the truth.

    Feature Image: Presidential debate between John F. Kennedy and Richard Nixon for the 1960 election in the United States.

    The English-Speaking Union (ESU) is an international charity and membership organisation underpinned by Royal Charter working to give all young people – regardless of background – the speaking and listening skills and the cross-cultural understanding to enable them to thrive.  

    Our programmes are underpinned by over 100 years’ expertise in the field of debate and public speaking delivery, policy and research. 

    Founded in 1918 by the author and journalist Sir Evelyn Wrench, the ESU brings together and empowers people of all cultures and nationalities by building confidence and shaping communication skills, so that individuals can realise their full potential.  In our 36 branches in England and Wales and 54 international branches, the ESU carries out a variety of activities such as: competitions, debating, public speaking and student exchange programmes, teacher training, classroom outreach, research and scholarships. All of these encourage the effective use of the English language around the world.

    To find out more about our work, please go to: https://www.esu.org/ and so consider joining the ESU: https://www.esu.org/support-our-work/become-a-member/.  Please contact Matthew Christmas, Head of Engagement, if you would like to know more or to volunteer with us: matthew.christmas@esu.org.

    Dartmouth House, in the heart of Mayfair, is our International Headquarters and, as Covid recedes, we are delighted to be re-starting our regular public debates where we encourage civil discussion and informed debate where all ages can get involved. 

    The next Dartmouth House Debate is on Monday 09 May 2022 at 1830 hrs to debate the motion that “This House believes that cryptocurrency and NFTs are a hyped-up fad.” 

    We hope that will want to find out more and get involved with the ESU.

  • Covid-19: A Simple Moral Calculus

    Introduction

    There are still many unresolved questions regarding the pathogenesis of this disease and especially the reasons underlying the extremely different clinical course, ranging from asymptomatic forms to severe manifestations, including the Acute Respiratory Distress Syndrome (ARDS). SARS-CoV-2 showed phylogenetic similarities to both SARS-CoV and MERS-CoV viruses, and some of the clinical features are shared between COVID-19 and previously identified beta-coronavirus infections. Available evidence indicate[s] that the so called “cytokine storm” an uncontrolled over-production of soluble markers of inflammation which, in turn, sustain an aberrant systemic inflammatory response, is a major [factor] responsible for the occurrence of ARDS.
    Francesca Coperchinia, Luca Chiovatoab, Laura Croceab, Flavia Magriab, Mario Rotondi, ‘The cytokine storm in COVID-19: ‘An overview of the involvement of the chemokine/chemokine-receptor system’ (2020)[i]

    For the first time in the post-war history of epidemics, there is a reversal of which countries are most heavily affected by a disease pandemic. By early May, 2020, more than 90% of all reported deaths from coronavirus disease 2019 (COVID-19) have been in the world’s richest countries; if China, Brazil, and Iran are included in this group, then that number rises to 96%.
    Richard Cash and Vikram Patel, ‘Has COVID-19 subverted global health?’ (2020)[ii]

    The evidence of Hitler’s as well as Stalin’s dictatorship points clearly to the fact that isolation of atomized individuals provides not only the mass basis for totalitarian rule, but is carried through to the top of the whole structure.
    Hannah Arendt, The Origins of Totalitarianism (1951).

    All this hate and violence [in the world] is being facilitated by a handful of internet companies that amount to the greatest propaganda machine in history.[iii]
    Sacha Baron Cohen, speech, (2019)

    Comment is free, but facts are sacred.[iv]
    John Scott, editor of The Guardian, (1921)

    In March, 2020 a simple moral calculus seized Western consciousness. Prompted by grim epidemiological assessments, and distressing accounts from emergency doctors in Northern Italy, a call to #flattenthecurve resounded across social media. The global force of hashtag activism led millions to renounce meeting friends and family in an extraordinary display of solidarity with vulnerable older people.

    Twitter, which had previously styled itself ‘the free speech-wing of the free-speech party’[v], allowing all manner of unmoderated content to appear on controversial subjects such as climate change – as well as hate speech from President Donald Trump – abruptly changed policy on March 16th saying it would be:

    Broadening our definition of harm to address content that goes directly against guidance from authoritative sources of global and local public health information. Rather than reports, we will enforce this in close coordination with trusted partners, including public health authorities and governments, and continue to use and consult with information from those sources when reviewing content.[vi]

    Problematically, however, there is no canonical response to the global pandemic and significant debate has occurred between authoritative sources, as different governments pursue varied policies, with mixed results. This has created potential for national authorities to impugn or disqualify reasonable criticism by grafting health warnings on accounts at variance with a particular government’s guidance, or wider political objectives.

    Twitter has not acted alone, Google has taken unprecedented steps to erase material that violates ‘Community Guidelines’: ‘including content that explicitly disputes the efficacy of global or local health authority recommended guidance on social distancing that may lead others to act against that guidance.’[vii]

    Typically, Facebook adopted a laissez faire approach, although users who had read, watched or shared ‘false’ coronavirus content received a pop-up alert urging them to go the World Health Organisation’s website.[viii]

    Whatever one’s view on the importance of social distancing, our readers may recall Ronald Dworkin’s pronouncement that ‘free speech is a condition of legitimate government.’ He argues that the universality of speech as a mode of rational discourse and scientific inquiry could act as truth-seeking counterweight to mass hysteria, negating unreason and prejudice.[ix]

    Moreover, Stephen Sedley, the great English judge, called freedom of expression ‘the lifeblood of democracy;[x] or as George Orwell put it in the introduction to Animal Farm (1945): ‘If liberty means anything at all, it means the right to tell people what they do not want to hear.’

    Accepting Covid-19 represents an extraordinary challenge requiring a concerted response, censorship by Big Data in such a blanket form, including of recognised academic authorities, surely only lends credence to conspiracy theories, fomented by the far-right in particular. Disregard for freedom of expression casts doubt over the integrity of scientific inquiry and inhibits rational debate.

    Reappraisal

    The English-speaking world was led to believe in early March that Covid-19 had a mortality rate of between 2% and 3% [xi], and that its spread would be exponential, with a reproductive (R) value of 3 (i.e. one person would infect another three), compared to an R value of 1.28 for seasonal influenza.[xii] Moreover, based on Lombardy’s experience, it seemed the death toll would include hundreds or even thousands of health service workers tending to the sick.

    As the weeks passed the assessment of the mortality rate was scaled back to 1.4%,[xiii] but by then the virus seemed to be moving through Europe like a forest fire at the height of summer. Soon the number of daily mortalities from the disease was dominating news headlines.

    Insofar as possible, most reasonable citizens abided by the popular injunction to #staythefuckathome, entrusting governments with emergency powers to guard against errant behaviour.

    As time passed, however, we learnt that early projections on the infection fatality rate seem to have been significantly wide of the mark. Lone Simonsen professor of population health sciences at Roskilde University in Denmark recently said she expected a infection fatality rate ‘possibly as low as 0.2% or 0.3%’, while Professor Emeritus at the Karolinska Institute in Stockholm Professor Johan Giesecke has suggested an even lower figure of 0.1%.[xiv] The U.S. Centre for Disease Control’s best estimate implies a COVID-19 infection fatality rate below 0.3%.[xv]

    Sunetra Gupta, Professor of Theoretical Epidemiology at the University of Oxford has gone lower still estimating an infection fatality rate of between 0.1% and 0.01%.[xvi] She bases this on an assumption the virus has been in circulation far longer than initially assumed, an argument gaining traction, with satellite data suggesting the pandemic hit Wuhan in China a far back as October,[xvii] while France’s ‘first known case’ was in December.[xviii] In truth, however, the infection fatality rate appears to depend hugely on the nature of any society, and not simply its age profile, for reasons to be discussed.

    An aggravated perception of danger is also likely to have occurred through media reports juxtaposing confirmed cases, with mortalities. Thus The Guardian reported on May 16th that, ‘According to the Johns Hopkins University tracker there are 4,531,811 confirmed cases worldwide. The number of people who have lost their lives is 307,001 according to official tolls, but the true number is likely to be much higher.’[xix]

    On a cursory examination, one might assume a infection fatality rate of 6-7%, or “much higher”. Little wonder then that people have been jumping out of the way of one another on footpaths.

    This infection fatality rate may well prove to be considerably higher than a seasonal flu mortality rate of 0.04%, but it is instructive that during one such outbreak in 2017-2018 that there were 61,000 influenza-associated deaths in the United States alone.[xx] Yet these preventable deaths hardly registered on the national consciousness, unlike like the victims of Covid-19.

    As Simon Jenkins, one of the few Guardian commentators who has kept the pandemic in perspective put it: ‘When hysteria is rife, we might try some history.’[xxi]

    Epidemiological Modelling

    Based on a infection fatality rate of 0.9%, in late March an Imperial College team led by Professor Neil Ferguson predicted that unless stern measures were taken there would be half-a-million deaths in the U.K. and over two million in the U.S.:[xxii]

    But as early as March Nobel-prize winning bio-physicist Michael Levitt was identifying common sense flaws in prominent epidemiological modelling, saying:

    In exponential growth models, you assume that new people can be infected every day, because you keep meeting new people. But, if you consider your own social circle, you basically meet the same people every day …. You can meet new people on public transportation, for example; but even on the bus, after sometime most passengers will either be infected or immune.[xxiii]

    Levitt assumed the R rate would decline once reasonable steps were taken, such as social distancing and removing the possibility of close confinement in pubs, at sporting events and other so-called ‘super-spreader’ events. [xxiv] In March Levitt told Ferguson that he had over-estimated the potential death toll by ‘10 or 12 times.’[xxv]

    Moreover, given only one branch seems to have closed its doors over the course of the outbreak in the U.K.,[xxvi] it appears early panic about contagions occurring in supermarkets, which is still leading to people disinfecting their shopping, were largely unfounded.[xxvii]

    Mistaking Flu for Coronavirus

    Mortalities from novel flu viruses tend to be among individuals under the age of forty. This is because ‘emergent viruses resembled those that had circulated previously within the lifespan of then-living people.’[xxviii] This means older peoples’ immune systems are generally better equipped with antibodies to fight off such novel infections.

    As yet it is still unclear whether exposure to other coronaviruses, including the ‘common cold’, provide greater immunity to Covid-19, although one recent paper does suggest, ‘cross-reactive T cell recognition between circulating “common cold” coronaviruses and SARS-CoV-2.’[xxix]

    It remains to be seen whether the death toll from Covid-19 will scale the heights of the ‘Asian’ Flu (H2S2) of 1957, (with a an estimated median R value of 1.65[xxx]) which led to 1 million deaths around the world, including 80,000 in the United States; or the ‘Hong Kong’ flu (H3N2) of 1968 (with an estimated median R value of 1.80) that was responsible for between 1 million and 4 million[xxxi]; let alone the Spanish Influenza (H1N1) outbreak of 1918 that carried off an astonishing fifty million people[xxxii], (with an estimated median R value of 3 [xxxiii]), most of whom were in the prime of their lives.

    Hugh Pennington emeritus professor of bacteriology at the University of Aberdeen recently took an optimistic view on the prospect of avoiding a dreaded ‘second wave’ of infections:

    The idea of a second wave comes almost entirely from the 1918 Spanish flu pandemic. The first wave occurred in June and July and the second in October and November. The first was mild, the second was lethal. It is yet to be explained why the infections occurred in waves and why the virus faded away after the first and then returned.

    ‘Flu is very different from Covid-19’ Pennington says, ‘Although both are commonly spread by the respiratory route, and both have infected prime ministers, the more we learn about Covid-19, the less its biology and epidemiology resemble that of flu.’

    He further contends, ‘In the absence of controls, flu has an R rate of seven [presumably he means at the height of a pandemic]; Covid-19’s is between two and three [lower seemingly than the earlier assessment]. And far more than with flu, Covid-19 cases have very commonly occurred in clusters.’

    Conflation with flu modelling may also be discounting wider “imperviousness” than assumed. UCL Professor Karl Friston famously drew on astrophysics to explain Germany’s low infection rate relative to the U.K.:

    it looks as if the low German fatality rate is not due to their superior testing capacity, but rather to the fact that the average German is less likely to get infected and die than the average Brit. Why? There are various possible explanations, but one that looks increasingly likely is that Germany has more immunological “dark matter” – people who are impervious to infection, perhaps because they are geographically isolated or have some kind of natural resistance. This is like dark matter in the universe: we can’t see it, but we know it must be there to account for what we can see.[xxxiv]

    The curious case of Japan also indicates that certain societies – or nations – are considerably more impervious than others. As the country in the world with the oldest population in the world, and with heavy urban densities, one would have expected the virus to have had a devastating impact there, yet:

    No restrictions were placed on residents’ movements, and businesses from restaurants to hairdressers stayed open. No high-tech apps that tracked people’s movements were deployed. The country doesn’t have a center for disease control. And even as nations were exhorted to “test, test, test,” Japan has tested just 0.2% of its population — one of the lowest rates among developed countries.[xxxv]

    Japan’s population of over 125 million experienced less than 1,000 deaths from Covid-19.

    Nonetheless, apart from underlying exacerbating factors such as population density and an ageing population – relative to its Irish neighbour at least[xxxvi] – as well as a high obesity rate,[xxxvii] the U.K.’s high death toll can, at least in part, be attributed to Boris Johnson’s government’s ‘sleepwalking’ through the beginning of the crisis,[xxxviii] almost wlilfully ignoring the threat, and putting out highly inappropriate messages, including on shaking hands.

    Nevertheless, the suggestion aired on an episode of Channel 4’s Dispatches that 13,000 deaths would have been avoided if a lockdown or stay-at-home order had been introduced at the beginning of March came from a health analyst, George Batchelor, rather than a recognised academic authority, and should be treated with caution.

    Revealingly, in Hong Kong where 90% of cases were contact traced, ‘the number of individual secondary cases was significantly higher within social settings such as bars and restaurants compared to family or work exposures.’ In time it may be determined that Boris Johnson’s hesitation in closing pubs was his most costly mistake.[xxxix]

    QALY

    In Italy, where average life expectancy is approximately eighty-three-years-of-age, the average age of mortality from Covid-19 was approximately eighty years-of-age.[xl] This figure includes over one hundred health care workers.[xli] Many of these premature deaths occurred in the clusters that Hugh Pennington refers to – perhaps from heavy ‘viral load’[xlii] encountered in poorly ventilated hospitals and care home facilities.

    The overall loss of life years from the Covid-19 pandemic may prove minimal, however, compared to novel flu viruses, which have mainly afflicted the young over the past century.

    This is not to diminish the value of any life, but public health interventions are conventionally given a comparative value (QALY – Quality-adjusted Life Year), ‘which is routinely used as a summary measure of health outcome for economic evaluation, which incorporates the impact on both the quantity and quality of life.’ The financial cost of any intervention, including a lockdown or stay-at-home order, must be measured against its impact on both quantity and quality of life.

    There are now serious question marks around the efficacy of lockdowns. Using ‘Bayesian’ modelling a team led by Professor Simon Wood in Bristol University supports Michael Levin’s assessment that early epidemiological models were flawed, suggesting that ‘the number of new daily infections in the UK peaked some days before lock down was implemented, although it does not completely rule out a slightly later peak.’[xliii]

    Furthermore, a quasi-experimental study carried out by the University of East Anglia concluded that stay at home orders, or lockdowns were ‘not associated with any independent additional impact.’[xlvi] Another recent study in Nature, however, offers a different assessment, but includes data from China, which may be unreliable, and where the extremity of the measures are  incompatible with democratic norms. Lockdown advocates also generally assume a higher infection fatality rate than recent reappraisals.

    During lockdown, across Europe and beyond, cases and deaths occured in clusters: within enclosed spaces such as care homes,[xliv] hospitals and meat packing plants,[xlv] but also households. Hashtag activism informed the public in most Western countries about the pandemic, who were refraining from unnecessary social encounters, and travel, already.

    This may be why the Norwegian Institute for Public Health has recently called for the government to avoid such a far-reaching measure if the country is hit by a second wave.[xlvii] Norwegian Prime Minister Erna Solberg also bravely admitted before a national television audience: ‘I probably took many of the decisions out of fear.’[xlviii]

    The adverse consequences of lockdowns – including a spike in domestic violence[xlix], its effect on children[l] and unprecedented economic impacts, especially on SMEs and casual workers, also cannot be discounted.

    Worst of all has been the effect of draconian lockdowns on developing countries, such as India. Vikram Patel and Richard Cash (both of Harvard University) wrote in The Lancet:

    we suggest that countries must let people get on with their lives—to work, earn money, and put food on the table. Let shop keepers open and sell their wares and provide services. Let construction workers return to building sites. Allow farmers to harvest their crops and to transport them to be sold on the open market. Allow health workers to do their daily work as before, with sensible precautions such as use of gloves and masks to minimise the risk of exposure to the virus. And allow the average citizen to travel freely with restrictions only applied to clusters where lockdowns are necessary. Livelihoods are an imperative for saving lives. Some will say such an approach, which runs the risk of spreading disease, implies that the lives of poor people are not as valuable as those in wealthy countries. Nothing could be further from the truth. The policies of widespread lockdowns and a focus on high-technology health care might unintentionally lead to even more sickness and death, disproportionately affecting the poor.

    These arguments also apply in wealthier societies, as many among the poor do not have the privilege of being able to work from home, and may participate in the black economy. Government supports are generally inadequate and do not last indefinitely.

    The preceding points are not a definitive argument in favour of Sweden’s policies during the pandemic, faults in which have been acknowledged by its chief architect Anders Tegnell. But it is important for policy makers to recognise the cost of lockdowns, especially for extended periods. Also, importantly, handing discretionary powers to police forces in such circumstances establishes a dangerous precedent.

    Fatalism

    In solitude we have been consumed by a story that feeds into pressing contemporary dilemmas, including on the role of scientific expertise. This can be situated within a long-standing division in Western culture between rationality and intuition, evident during World War II in the conflict between Communism and Fascism.

    As Martin Glover put it:

    Stalin, as a version of the Enlightenment idea of redesigning society on a rational basis, shared the catastrophic implications of carrying out such a project without moral or human restraints. Nazism was against the universalism of Kant and other Enlightenment thinkers. It was tribal: not rights of man, but the German right to lebensraum … Stalinism shows what can happen when Enlightenment ideas are applied wrongly, Nazism shows what can happen when unenlightened ideas are applied rightly.[liii]

    A form of this has spilled into the so-called Culture Wars, including identity politics, that have raged in particular since the 1990s, culminating in Brexit and President Trump, but it is also perhaps evident at a psychological level within most of our personalities. Importantly, excesses of rationality can be as destructive as Fascism, as we saw under the guise of Communism.

    Responses to the pandemic have also been conditioned by prior faith in, or suspicion of, the Western medical system – including from so-called anti-vaxxers – with Populist right-wing politicians dismissing concerns about a bad flu,[liv] and offering to take it on the chin.[lv] In contrast, some on the left seem to have viewed the crisis as an opportunity to enlarge the role of the State, leading to countervailing scientific authorities to be dismissed on ideological grounds.

    There may also have been a tendency, evident in The Guardian, The New York Times and elsewhere, to heighten outrage against the administrations of Donald Trump in the U.S. and Boris Johnson in the U.K. by front-loading mortality statistics.

    Another explanation for the extreme response of individuals who consented to prolonged periods of self-isolation – including those of an age profile suggesting they had little to worry about themselves – is an evident fatalism haunting a globally dominant capitalist system. As David Graeber put it:

    Capitalism is a system that enshrines the gambler as an essential part of its operation, in a way that no other has, yet at the same time, capitalism seems to be uniquely incapable of conceiving of its own eternity. Could these two facts be linked?[lvi]

    An understandable fatalism in the face of climate change and mass extinctions, perhaps spilled into reactions to this pandemic, with self-isolation a form of repentance.

    Moreover, the idea of plague as representing divine retribution may operate at an unconscious level. Apart from Biblical episodes such as that visited on Egypt, it is found in ancient epics such as Homer’s Iliad. Thus, when King Agamemnon makes a war prize of Chryseis the daughter of Chryses a priest of Apollo, the sun god takes revenge by unleashing poison-tipped arrows against the Greek army, many of whom succumb to plague.

    More recently, films, such as Outbreak (1995) starring and Dustin Hoffman, and novels such as Jose Saramago’s Blindness (1997), have played on these fears.

    What was Covid-19 but God or Gaia punishing us for our consumerist sins?

    Guardian Angle

    The so-called hashtag activism that prompted civil society to take preventive measures against Covid-19, and which led to many governments to adopt draconian suppression policies, including lockdowns, has been led in the U.K. and Ireland in particular by The Guardian newspaper

    The free digital site with an estimated 42 million monthly visitors[lvii] devoted unrelenting rolling coverage to Covid-19, emphasising the simple moral calculus with a banner across its home page. This has been to the almost complete exclusion of all other content for the months of March, April and May.

    The Guardian’s loss of proportion, and nuance, has been particularly damaging as it is the most trusted newspaper brand in the U.K., including, importantly, among readers aged 18 to 29.[lviii] This may be traced to its position as a global news provider of free content dependent on maintaining an enormous click rate to derive a profit.

    In a recent memoir the former editor Alan Rusbridger describes how: ‘Only by going for reach could you make up for … the ‘frightening disparity’ between the yields in traditional and online media.’[lix]

    He reveals that by mid-2018:

    The Guardian was reaching 150 million browsers each month and a billion page views per month. There was no talk of paywalls: even so, reader revenues had overtaken advertising. And digital revenues – at £109 million – had, for the first time, overtaken the £107.5 million of print revenues. The paper was confidently talking of hitting break-even in 2018/19.[lx]

    The difficulty is that once you have reached such a high threshold, and have taken on hundreds of staff, you have to keep that readership transfixed.

    The Guardian’s increasingly monopolistic position has come at the expense of journalistic diversity, as smaller publishers cannot compete with its reach. Moreover the perceived reliability of its reporting creates a difficulty for competitors wishing to mount a pay wall without significant marketing investment. In such a squeezed field alternatives are increasingly the preserve of billionaires, such as Rupert Murdoch, the Barclay Brothers, Mike Bloomberg and Jeff Bezos. This is having a corrosive effect on democracy, as many of these publications are ideologically tainted, and support vested interests.

    Underling all this, the number of American journalists fell from 60,000 in 1992 to 40,000 in 2009,[lxi] This pattern has been seen all around the world as revenues diminish and workloads increase. In the U.K. Cardiff University researchers recently conducted an analysis of 2,000 U.K. news stories. They discovered the average Fleet Street journalist was filing three times as much as in 1985. Or, to put it another way, journalists now have only one-third of the time they used to have to do their jobs.[lxii]

    This results in what Nick Davies has described as ‘churnalism’, whereby most journalists are passive processors of ‘unchecked, second-hand material, much of it contrived by PR to serve a political or commercial interest.’[lxiii]

    Hyperbolic Coverage

    An exhaustive assessment of Guardian coverage is beyond the scope of this article, but two examples of their unsatisfactory reporting throughout this crisis should hopefully suffice.

    On Friday, May 15th an article ran under the headline: ‘Dying to go out to eat? Here’s how viruses like Covid-19 spread in a restaurant’.[lxiv] It referred to a video experiment simulating ‘how quickly germs can be spread across a variety of surfaces in environments such as restaurant buffets and cruise ships.’

    To begin with, one guest of 10 at a restaurant buffet is shown with the substance on his hands meant as a stand-in for the coronavirus. Over the course of a typical dining period, the rest of the guests behave in predictable fashion, selecting utensils from serving stations, enjoying their food, checking their phones and so on.

    At the end of the experiment the black light is turned on and the substance is revealed to be smeared everywhere: plates, foodstuff, utensils and even all over some of the guests’ faces.

    A few paragraphs into the article, however, a second experiment demonstrates the positive effect of improved hygiene techniques, after ‘the “infected” person and the other diners take the simple precaution of washing their hands, and utensils and other implements are cleaned or replaced.

    The first difficulty with the study itself is that it is conducted in a canteen-style restaurant – a worst case scenario where cutlery and plates are exposed to many hands. But the most obvious problem is that the headline feeds into a narrative of fear and paranoia, to the detriment of anyone struggling to keep a restaurant afloat.

    Another headline from May 26th paints a lurid picture: ‘Global report: ‘disaster’ looms for millions of children as WHO warns of second peak’.[lxv] Yet it soon apparent that the “disastrous” consequences for children, who are more likely to die after being struck by lightening than from a dose of Covid-19 and barely register as mortalities from the virus,[lxvi] is from increased vulnerability to forced labour and underage marriage. The “second peak” warned of by the WHO in the headline is a non-sequitur that has nothing to do with any elevated danger to children,

    Choice of headline is crucial as many browsers simply scan news sites. A 2010 Pew analysis found that the average visitor spent only 3 minutes 4 seconds per session on the typical news site. That compared with a 2005 survey showing about half of U.S. newspaper readers spent more than thirty minutes reading a daily paper.[lxvii]

    What has gone wrong?

    Clay Shirky writes in Here Comes Everybody (2008):

    When we change the way we communicate, we change society. The tools that a society uses to create and maintain itself are as central to human life as a hive is to a bee … The hive is a social device, a piece of bee information technology that provides a platform, literally, for the communication and co-ordination that keep the colony viable. Individual bees can’t be understood separately from the colony or from their shared, co-created environment. So it is with human networks.

    He asserts that the ‘Web didn’t introduce a new competitor into the old eco-system, as USA Today had done. The Web created a new ecosystem.’[lxviii]

    The Guardian embraced a form of ‘collaboration media’, which companies and politicians rapidly learned to respect, and fear. Former editor Alan Rusbridger recognised that ‘social media would disrupt conventional politics and transform the speed at which it happened.’ He acknowledges, however, that, ‘It was, obviously, not necessarily good at complexity – though it could link to the complexity. It could be frustratingly reductive. It didn’t patiently and painstakingly report, in the way a good new organisation still did. It was to some extent parasitical.’[lxix]

    Rusbridger also quotes former Sunday Times editor Harold Evans to the effect that ‘an investigation only really began to count once the readers and even the journalists were bored with it.’[lxx] But in an all-consuming demand for clicks, and in the frenzied political era of Trump and Brexit, balance has been lost. Lacking detached and independent journalism we have walked into a prolonged social experiment that will take considerable unravelling.

    A New Hashtag

    On May 25th, 2020, George Perry Floyd, a 46-year-old black man was killed when a white Minneapolis police officer kneeled on his neck during an arrest for passing a counterfeit $20 bill. His death brought a wave of demonstrations in major U.S. cities that have spread to other countries, with many protestors donning masks as protection against the virus.

    The hashtag generation has discovered another noble cause in #blacklivesmatter – to be clear #flattenthecurve was certainly well motivated – but let us hope balance and nuance is not lost, and that a deadening conformity does not ensue in debates over race, poverty and the ambit of the state.

    The extraordinary scenes witnessed around the world could also be interpreted as a proxy for societies throwing off the heavy knee of lockdowns, containing a basic human impulse to interact with one another, honouring the exuberant Dionysian element in our nature that had been contained by Apollonian rationality.

    Fyodor Dostoyevsky’s unnamed narrator from Notes from the Underground (1864) seems to envisage the poles of this division. First, he describes the archetypal rationalist that ‘scientifically’ predicts all outcomes in society:

    All human actions will then of course be calculated, mathematically, like logarithm tables up to 108,000, and recorded in a calendar; or even better, well-intentioned publications will then appear, like the present-day encyclopaedic dictionaries, in which everything will be so precisely calculated and recorded that there will no longer be deliberate acts or adventures in the world.

    But he suggests this would create a reaction:

    I, for example, wouldn’t be at all surprised if, in the midst of all this reasonableness that is to come, suddenly and quite unaccountably some gentleman with an ignoble, or rather a reactionary and mocking physiognomy were to appear and, arms akimbo, say to us all: “Now, gentlemen, what about giving all this reasonableness a good kick with the sole purpose of sending all those logarithms to hell for a while so we can live for a while in accordance with our own stupid will![lxxi]

    Thus an excess of rationality may create conditions for profound irrationality, or even absurdity in the case of the utilitarian philosopher Jeremy Bentham’s felicitous calculus.

    What Next?

    We still have to address the public health crisis of a pandemic, requiring substantial reforms in healthcare, architecture and spatial design to contend with a disease that should not be treated as a flu pandemic.

    Once unsustainable lockdowns ease, Western societies with susceptible populations must adapt to life with the virus. A policy of elimination is unrealistic and even cruel, unless we essentially exclude entrants from the outside world, as in New Zealand, or become a police state like China.

    Like a thief in the night, Covid-19 discovered weaknesses in the wealthiest countries in the world that also happen to be among the most unequal. Most obviously it found its way to older individuals, many weakened by increasingly poor diets and sedentarism that is behind a pernicious obesity pandemic.

    It has already been argued that life expectancy is declining in the United States,[lxxii] after two centuries during which it climbed steadily. Our lives, and diets, are simply unsustainable, and perhaps Covid-19 is nature’s (God or Gaia’s?) way of telling us so. The question is whether we are prepared to adopt the environmental approaches to lower the risk of further zoonotic episodes that lead to viruses.

    On a more basic level we need to retrofit buildings – embracing the idea of a healthy home[lxxiii] or workplace that diminishes viral load – and redesign transport systems to prevent contagions. As a priority we require hospital design for better infection control as ‘Building ventilation, whether natural or mechanical serves to dilute droplets nuclei in the air and is the single most important engineering control in the prevention of transmission of airborne infections.’[lxxiv]

    Yet surely we cannot lose the joy of social interaction, or turn romance into an online transaction controlled by algorithms. Great gatherings of people are still the lifeblood of politics, the arts and sport. For these to become historical curiosities, outlawed indefinitely as “super-spreader” events, would be lamentable.

    We have to shake the trauma off somehow, or dance it off perhaps. Above all children cannot be confounded by the fear of their parents and other adults, and have natural inclinations to play frustrated indefinitely. Let us restore the friendly hug or kiss in time. We have to accept a measure of death in exchange for the expression of lives we all value. Society cannot be broken by social distancing.

    Another vital lessons from this pandemic is that we require greater freedom of expression and media diversity. It is unacceptable for unaccountable corporate bodies such as Twitter, Google and Facebook to control narratives indefinitely. In truth, people may have to get used to paying for journalism once again, or at least acknowledge that without payment you are (mostly) getting clickbait.

    In writing ‘the first draft of history’ on Covid-19, The Guardian may be excused for making errors, but nor should the publication be viewed as a neutral conduit of facts either, unmotivated by profit, and without a seat at the highest tables of power. As Rusbridger reveals in response to the Edward Snowden and Julian Assange accounts: ‘I once remarked to a senior intelligence figure that the British and American governments, instead of condemning our role, should go down on their knees in thanks that we were there as such a careful filter.’[lxxv]

    All Images © Daniele Idini

    [i] Francesca Coperchinia, Luca Chiovatoab, Laura Croceab, Flavia Magriab, Mario Rotondi, ‘The cytokine storm in COVID-19: An overview of the involvement of the chemokine/chemokine-receptor system’ (2020)https://www.sciencedirect.com/science/article/pii/S1359610120300927

    [ii] Richard Cash and Vikram Patel, ‘Has COVID-19 subverted global health?’ May 5th, 2020, The Lancet. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31089-8/fulltext

    [iii] Untitled, ‘’Greatest propaganda machine in history’: Sacha Baron Cohen slams Facebook, other social media companies’, NBC November 22nd, 2020, https://www.nbcnews.com/tech/social-media/greatest-propaganda-machine-history-sacha-baron-cohen-slams-facebook-other-n1089471

    [iv] Simon Rogers, ‘Data journalism in action: what is Facts are Sacred about?’ April 4th, 2013, https://www.theguardian.com/news/datablog/2013/apr/04/data-journalism-facts-are-sacred

    [v] Josh Halliday, ‘Twitter’s Tony Wang: ‘We are the free speech wing of the free speech party’’ March 22nd, 2012, https://www.theguardian.com/media/2012/mar/22/twitter-tony-wang-free-speech

    [vi] Vijaya Gadde and Matt Derella, ‘An update on our continuity strategy during COVID-19’,  https://blog.twitter.com/en_us/topics/company/2020/An-update-on-our-continuity-strategy-during-COVID-19.html

    [vii] Jon Levine, ‘YouTube censors epidemiologist Knut Wittkowski for opposing lockdown’, New York Post, May 16th, 2020,   https://nypost.com/2020/05/16/youtube-censors-epidemiologist-knut-wittkowski-for-opposing-lockdown/

    [viii] Untitled, ‘Coronavirus: Facebook alters virus action after damning misinformation report’, BBC, April 3rd, 2020, https://www.bbc.com/news/technology-52309094

    [ix] Ronald Dworkin ‘The Right to Ridicule’, March 23rd, 2006, The New York Review of Books, https://www.nybooks.com/articles/2006/03/23/the-right-to-ridicule/, accessed 26/4/19.

    [x] Stephen Sedley, Law and the Whirligig of Time, London, Hart Publishing, 2018.

    [xi] Sharon Begey, ‘Lower death rate estimates for coronavirus, especially for non-elderly, provide glimmer of hope’, March 16th, Stat, https://www.statnews.com/2020/03/16/lower-coronavirus-death-rate-estimates/

    [xii] Matthew Biggerstaff, Simon Cauchemez, Carrie Reed, Manoj Gambhir & Lyn Finelli, ‘Estimates of the reproduction number for seasonal, pandemic, and zoonotic influenza: a systematic review of the literature’ BMC Infectious Diseases, September, 2014, https://bmcinfectdis.biomedcentral.com/articles/10.1186/1471-2334-14-480

    [xiii] Ibid, Sharon Begley, Ihttps://www.statnews.com/2020/03/16/lower-coronavirus-death-rate-estimates/

    [xiv] Justin Fox, ‘The Coronavirus is worse than the flu, bro’ Bloomberg, April 24th, 2020 https://www.bloomberg.com/opinion/articles/2020-04-24/is-coronavirus-worse-than-the-flu-blood-studies-say-yes-by-far

    [xv] Jacob Sullum, ‘The CDC’s New ‘Best Estimate’ Implies a COVID-19 Infection Fatality Rate Below 0.3%’, Reason, 24th of May, 2020, https://reason.com/2020/05/24/the-cdcs-new-best-estimate-implies-a-covid-19-infection-fatality-rate-below-0-3/

    [xvi] Freddie Sayers,  ‘ Sunetra Gupta: Covid-19 is on the way out’ Unherd, May 21st, 2020, https://unherd.com/2020/05/oxford-doubles-down-sunetra-gupta-interview/

    [xvii] Kaitlyn Folmer and Josh Margolin, ‘Satellite data suggests coronavirus may have hit China earlier: Researchers’, ABC News, June 8th, 2020, https://abcnews.go.com/International/satellite-data-suggests-coronavirus-hit-china-earlier-researchers/story?id=71123270

    [xviii] Untitled, ‘Coronavirus: France’s first known case ‘was in December’, BBC, May 5th, 2020, https://www.bbc.com/news/world-europe-52526554

    [xix] Guardian staff and agencies, ‘Global report: US House passes $3tn stimulus as experts track Covid-19-linked syndrome’, The Guardian, May 16th, 2020, https://www.theguardian.com/world/2020/may/16/global-report-democrats-push-for-3tn-stimulus-as-experts-track-covid-linked-syndrome?fbclid=IwAR1tpHpfNr_3zdSY68Yw6BUpUfAM6S56Dke8VANSk21Fhx2OQZO9pRDzFug

    [xx] Center for Disease Control, ‘Estimated Influenza Illnesses, Medical visits, Hospitalizations, and Deaths in the United States — 2017–2018 influenza season’, https://www.cdc.gov/flu/about/burden/2017-2018.htm

    [xxi] Simon Jenkins, ‘Why I’m taking the coronavirus hype with a pinch of salt’, The Guardian, March 6th, 2020, https://www.theguardian.com/commentisfree/2020/mar/06/coronavirus-hype-crisis-predictions-sars-swine-flu-panics

    [xxii] David Adam, ‘Special report: The simulations driving the world’s response to COVID-19’, Nature, April 3rd, 2020, https://www.nature.com/articles/d41586-020-01003-6

    [xxiii] Graig Graziosi, ‘Coronavirus: Nobel Prize winner predicts US will get through crisis sooner than expected’, The Independent, March 24th, 2020, https://www.independent.co.uk/news/world/americas/coronavirus-michael-levitt-china-italy-a9422986.html

    [xxiv] Richard A. Stein, ‘Super-spreaders in infectious diseases’, International Journal of Infectious Diseases, April, 2011,  https://www.sciencedirect.com/science/article/pii/S1201971211000245

    [xxv] Tom Morgan, ‘ Lockdown saved no lives and may have cost them, Nobel Prize winner believes’, 23rd of May, 2020, https://www.telegraph.co.uk/news/2020/05/23/lockdown-saved-no-lives-may-have-cost-nobel-prize-winner-believes/

    [xxvi] Amelia Winn, ‘Lidl becomes first supermarket chain to CLOSE a UK store after staff catch coronavirus – but shoppers are told doors will reopen on Monday’, Daily Mail, May 3rd, 2020, https://www.dailymail.co.uk/news/article-8281995/Lidl-supermarket-chain-CLOSE-UK-store-staff-catch-coronavirus.html

    [xxvii] Emily Holden, ‘Do you need to wash your groceries? And other advice for shopping safely’, The Guardian, April 2nd, 2020, https://www.theguardian.com/world/2020/apr/02/do-you-need-to-wash-your-groceries-and-other-advice-for-shopping-safely

    [xxviii] Tom Reichert, Gerardo Chowell & Jonathan A McCullers, ‘The age distribution of mortality due to influenza: pandemic and peri-pandemic’ BMC Medicine, December 12th, 2012, https://bmcmedicine.biomedcentral.com/articles/10.1186/1741-7015-10-162

    [xxix] Alba Grifoni, Daniela Weiskopf, Sydney I. Ramirez, Davey M. Smith, Shane Crotty, Alessandro Sette, Cell, ‘Targets of T Cell Responses to SARS-CoV-2 Coronavirus in Humans with COVID-19 Disease and Unexposed Individuals’ May 14th, 2020, https://www.cell.com/cell/fulltext/S0092-8674(20)30610-3

    [xxx] Matthew Biggerstaff, Simon Cauchemez, Carrie Reed, Manoj Gambhir, and Lyn Finelli, ‘Estimates of the reproduction number for seasonal, pandemic, and zoonotic influenza: a systematic review of the literature’, BMC Infectious Diseases, September 4th, 2014, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4169819/

    [xxxi] Mark Honigsbaum, ‘Revisiting the 1957 and 1968 influenza pandemics‘,The Lancet, May 25th, 2020,  https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31201-0/fulltext

    [xxxii] Center for Disease Control, ‘1918 Pandemic (H1N1 virus)’ https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html

    [xxxiii] Emilia Vynnycky, Amy Trindall, Punam Mangtani, ‘Estimates of the reproduction numbers of Spanish influenza using morbidity data’, International Journal of Epidemiology, May 17th, 2007, https://academic.oup.com/ije/article/36/4/881/667165

    [xxxiv] Laura Spinney, ‘Covid-19 expert Karl Friston: ‘Germany may have more immunological “dark matter”’’ The Guardian, May 31st, 2020, https://www.theguardian.com/world/2020/may/31/covid-19-expert-karl-friston-germany-may-have-more-immunological-dark-matter

    [xxxv] Lisa Dua and Grace Huang, ‘Did Japan Just Beat the Virus Without Lockdowns or Mass Testing?’ Bloomberg, May 22nd, 2020, https://www.bloomberg.com/news/articles/2020-05-22/did-japan-just-beat-the-virus-without-lockdowns-or-mass-testing

    [xxxvi] Nicola Davis and Rory Carrol, ‘ Experts divided over comparison of UK and Ireland’s coronavirus records’, The Guardian, April 13th, 2020, https://www.theguardian.com/world/2020/apr/13/experts-divided-comparison-uk-ireland-coronavirus-record

    [xxxvii] Untitled, ‘ Obesity crisis: The UK’s weight problem in seven charts’, Sky News, August 20th, 2019, https://news.sky.com/story/seven-charts-on-the-uks-obesity-problem-11583981

    [xxxviii] Jonathan Calvert, George Arbuthnott and Jonathan Leake, ‘Coronavirus: 38 days when Britain sleepwalked into disaster’, The Sunday Times, April 19th, 2020, https://www.thetimes.co.uk/article/coronavirus-38-days-when-britain-sleepwalked-into-disaster-hq3b9tlgh

    [xxxix] Untitled, ‘Coronavirus: Prime Minister Boris Johnson orders pubs, restaurants and gyms to close across the UK’ March 21st, 2020, Sky News, https://www.skysports.com/more-sports/other-sports/news/12040/11961096/coronavirus-prime-minister-boris-johnson-orders-pubs-restaurants-and-gyms-to-close-across-the-uk

    [xl] ‘Coronavirus (COVID-19) deaths in Italy as of June 3, 2020, by age group’, Statista, https://www.statista.com/statistics/1105061/coronavirus-deaths-by-region-in-italy/

    [xli] Untitled, ‘Italy says number of doctors killed by coronavirus passes 100’ France24, April 9th 2020, https://www.france24.com/en/20200409-italy-says-number-of-doctors-killed-by-coronavirus-passes-100

    [xlii] Marta Gaglia and Seema Lakdawala, ‘What we do and do not know about COVID-19’s infectious dose and viral load’, The Conversation, April 14th, 2020, https://theconversation.com/what-we-do-and-do-not-know-about-covid-19s-infectious-dose-and-viral-load-135991

    [xliii] Simon Wood et al, ‘UK Covid-19 infection peak may have fallen before lockdown, new analysis shows’, May 7th, Bristol University, May 7th, 2020, https://www.bristol.ac.uk/maths/news/2020/peak-lockdown.html?fbclid=IwAR2g2Mr0IudkXCnQo8leIdVBueq-fdkLNGk9lQjPYrrrO7GW2jfMT19Hg1Q

    [xliv] Observer Reporters, ‘Across the world, figures reveal horrific toll of care home deaths’, The Guardian, May 16th, 2020, https://www.theguardian.com/world/2020/may/16/across-the-world-figures-reveal-horrific-covid-19-toll-of-care-home-deaths

    [xlv] Megan Molteni, ‘Why Meatpacking Plants Have Become Covid-19 Hot Spots’, Wired, May 7th, 2020, https://www.wired.com/story/why-meatpacking-plants-have-become-covid-19-hot-spots/

    [xlvi] Press Release, ‘New study reveals blueprint for getting out of Covid-19 lockdown’, May 6th, 2020, University of East Anglia  https://www.uea.ac.uk/about/-/new-study-reveals-blueprint-for-getting-out-of-covid-19-lockdown

    [xlvii] Untitled, ‘Norway could have controlled infection without lockdown’, The Local, May 22nd, 2020, https://www.thelocal.no/20200522/norway-could-have-controlled-infection-without-lockdown-health-chief?fbclid=IwAR1jJTUpQLXLgONVqWmLJHQ2-rd-FG7794lONTsaquGaw0DJmhIUEOqWLwk

    [xlviii] Richard Orange, ‘Coronavirus: Norway wonders if it should have been more like Sweden’, The Telegraph, May 30th, 2020, https://www.telegraph.co.uk/news/2020/05/30/coronavirus-norway-wonders-should-have-like-sweden/

    [xlix] Emma Graham-Harrison, Angela Giuffrida in Rome, Helena Smith in Athens and Liz Ford, ‘Lockdowns around the world bring rise in domestic violence’, The Guardian, March 28th, 2020, https://www.theguardian.com/society/2020/mar/28/lockdowns-world-rise-domestic-violence

    [l] United Nations Sustainable Development Group, ‘Policy Brief: The Impact of COVID-19 on children’ April, 2020, https://unsdg.un.org/resources/policy-brief-impact-covid-19-children?fbclid=IwAR35l8582cnFgE_sWLurILYXeGWyg_PYSo8BApmmsarSwa_8_FQGzafxoI0

    [li] Johan Giesecke ‘The invisible pandemic’, The Lancet, May 5th, 2020, https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)31035-7/fulltext

    [lii] Jon Henley, ‘We should have done more, admits architect of Sweden’s Covid-19 strategy’, June 3rd, 2020, The Guardian,  https://www.theguardian.com/world/2020/jun/03/architect-of-sweden-coronavirus-strategy-admits-too-many-died-anders-tegnell

    [liii] Jonathan Glover, A Moral History of the Twentieth Century, Pimlico, London, 1999, p.394

    [liv] Oliver Milman, ‘Seven of Donald Trump’s most misleading coronavirus claims’, The Guardian, March 30th, 2020, https://www.theguardian.com/us-news/2020/mar/28/trump-coronavirus-misleading-claims

    [lv] Michelle Cottle, ‘Boris Johnson Should Have Taken His Own Medicine’, New York Times, March 27th, 2020, https://www.nytimes.com/2020/03/27/opinion/boris-johnson-coronavirus.html

    [lvi] David Graeber, Debt – The First 5,000 Years, Melville, London, 2011, p.357

    [lvii] ‘Top 15 Most Popular News Websites | February 2020’, http://www.ebizmba.com/articles/news-websites

    [lviii] Jim Waterson, ‘Guardian named UK’s most trusted newspaper‘ The Guardian, October 31st, 2018, https://www.theguardian.com/media/2018/oct/31/guardian-rated-most-trusted-newspaper-brand-in-uk-study

    [lix] Alan Rusbridger, The Remaking of Journalism and Why it Matters Now, Canongate, Edinburgh, 2018, p.145

    [lx] Ibid, p.348

    [lxi] Ibid, p.163

    [lxii] Ibid, p.181

    [lxiii] Ibid p.181

    [lxiv] Luke O’Neill, ‘Dying to go out to eat? Here’s how viruses like Covid-19 spread in a restaurant’, The Guardian, May 15th, 2020, https://www.theguardian.com/world/2020/may/15/how-coronavirus-spreads-in-restaurant-video

    [lxv] Guardian Staff and Agencies, ‘Global report: ‘disaster’ looms for millions of children as WHO warns of second peak’, The Guardian, May 26th, 2020, https://www.theguardian.com/world/2020/may/26/global-report-disaster-looms-for-millions-of-children-as-who-warns-of-second-peak

    [lxvi] Statista, ‘Coronavirus (COVID-19) deaths in Italy as of June 3, 2020, by age group’  https://www.statista.com/statistics/1105061/coronavirus-deaths-by-region-in-italy/

    [lxvii] Rusbridger, Ibid, p.275

    [lxviii] Quoted in Rusbridger, Ibid, p.135

    [lxix] Ibidp.143

    [lxx] Ibid, p.161

    [lxxi] Fyodor Dostoyevsky, Notes From the Underground, Alma Books, London, p.23-24

    [lxxii] S. Jay Olshansky, Ph.D., Douglas J. Passaro, M.D., Ronald C. Hershow, M.D., Jennifer Layden, M.P.H., Bruce A. Carnes, Ph.D., Jacob Brody, M.D., Leonard Hayflick, Ph.D., Robert N. Butler, M.D., David B. Allison, Ph.D., and David S. Ludwig, M.D., Ph.D. ‘ A Potential Decline in Life Expectancy in the United States in the 21st Century’, The New England Journal of Medicine, March 17th, 2005,  https://www.nejm.org/doi/full/10.1056/NEJMsr043743

    [lxxiii] Kate Hamblet, ‘How to Design a Healthy Home ~ An Architect’s Blueprint’, HealthyGreenSavvy, January 5th, 2019, https://www.healthygreensavvy.com/healthy-home/

    [lxxiv] Fatimah Lateef, ‘Hospital design for better infection control’, Journal of Emergencies, Shock and Trauma, 2009, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2776365/

    [lxxv] Ibid, Rusbridger, p.250