COVID-19 and the command of the law

An attorney colleague of some gravitas recently died during the Coronavirus lockdown.*

He had endured some health challenges for some time. I was not able to attend the funeral; but I attended the one evening of shiva prayers on Zoom. The Orthodox rabbi led a meaningful service for about 30 people, who joined the Zoom prayers. Also, joining was a rabbi from a synagogue in Perth and family members of the late colleague who live in London.

I found the prayers particularly meaningful. All the mourners were on mute until after the rabbi had completed his eulogy and sang the Hebrew prayers. After he had completed his part any of those who attended could say a few words. The hour had a power and spirituality different to all the shiva prayers I have attended in person. I was able to concentrate and reflect on the life of the colleague in a special and unique way. And there was a sort of strange intimacy in that we could through our screens be in each other’s home spaces. Although I was physically alone at home with my memories and thoughts about the departed attorney, my ‘aloneness’ was in a strange metaphysical way in the company of those attending on Zoom.

We could use our computer instruments to ‘chat’ during the hour by typing up comments, which all of us could read and respond to. You may wonder what this has to do with the law? Well, the law banned us from attending prayers in person. So we were forced to attend through digital means. Secondly, I thought the rabbi made an incredibly powerful point during his meditations. He reflected something along the lines that a hundred years ago the Spanish Flu of 1918 killed so many millions and millions of people; and those who lived during that pandemic 100 years ago would not have believed it if it would have been suggested to them that prayers after a funeral could have been held like we were doing. People’s reality had changed unimaginably in a short time. And we on Zoom were in our seemingly different realities; I at my house by myself just a few physical steps away from others at the shiva prayers, yet I was also in the company of those many thousands of kilometres away. From the colleague’s family in London to the rabbi in Perth in a different time zone.

The rabbi’s point went further. He explained that just as our reality is so different from those who lived through the Spanish Flu, so was the attorney’s reality different to ours. We are on this earth as living humans, whereas the late attorney had moved to another reality. Who knows, the rabbi mused: perhaps one hundred years from now a person who had moved to another reality through death would be able to somehow join our Zoom prayer meeting. Wow!

And where does the law fit in. Does the law follow our human reality or do our lives play out through the commands and dictates of the law? I think the answer is a mixture of both. In some instances, scientific and human development require the law to accommodate the newly established reality. For example, just like the creation of the printing press forced the law to move in ways it otherwise would not have, so climate change and digital technology requires States all over the world to develop the laws to recognise our new reality. But the law also leads.

MPs enact laws and the executive make regulations to ‘protect’ and advance the interests of society and its members. These laws and rules force people to change their behaviour. The laws are put in place hopefully for the purpose of making a better society. Some call this social engineering. Obvious examples of ugly social engineering are the Nazi laws and apartheid. But there are other legal commands that may be regarded as making society safer and more decent. The ubuntu charter of the Constitution requires all members of society to respect and be “nice” to each other. Hate speech is not to be tolerated. But, of course, freedom of expression must be respected. How to balance so many competing and contradictory rights is a tough task ahead.

And that is where the Zoom prayers come in. Clearly the right to freedom of movement, the right to religious freedom, the right to privacy, and particularly the right to dignity are all violated by the legal bans imposed by the disaster lockdown. But if there was no legal lockdown and we could all carry on our lives as usual without the command of the disaster laws, would many thousands of our neighbours, colleagues, friends and family get sick, and possibly die? None of us want that dire situation. So the law commands all of us to behave in a certain way to protect all of us. Some would suggest that this draconian controlling approach is desirable to make society a better environment. Others may claim that laws seeking to implement social engineering, even for a short time, is an unacceptable intrusion into our private autonomous lives.

And what happens if the state starts putting micro-chips in every person’s arm. The state’s argument could be “we need to know where you are at all times to protect you and all others.” Would that be a bridge too far? That is what the anti-vaxxers claim on religious grounds about compulsory measles vaccinations. But then consider the sadly high outbreak of measles in the anti-vaxxers community. The law always has and will have tough choices in the coming years. A balancing of so many competing interests will be the golden thread. These new, interesting and in many ways difficult times will demand so much from the courts, lawyers and the law.

*Attorney at law Maurice Phillips passed away on 14 April 2020.

Anton Katz SC, a senior counsel practicing at the Cape Bar, was a member (2011-2018) of the UN Human Rights Council working group on mercenaries.

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