COVID-19 | Freedom or freedoms?

The question of the scope of vaccine passports often pits the freedom of the unvaccinated against the coercive power of the State, the right to autonomy of the former against the repressive authority of the latter.

To pose the problem this way is not inaccurate, but suggests that freedom has only a negative dimension, that it lacks a positive counterpart, and that the state is only an abstract entity rather. as the representative of very concrete citizens.

Negative freedom or freedom-independence, better rendered by its English equivalent freedom from, refers to “the right to an irreducible sphere of personal autonomy where individuals can make intrinsically private decisions without state intervention” (Godbout, Supreme Court of Canada, 1997). Freedom-independence protects us against the coercive power of the state (which can, however, reasonably limit this freedom). It is this form of freedom that unvaccinated people claim.

Let us immediately point out, however, that negative freedom, as defined by the courts, relates only to the freedom to make existential choices. As the Supreme Court has said (Malmo-Levine, Supreme Court of Canada, 2003), “the scope of the Constitution cannot be broadened to protect any activity that a person chooses to define as essential to their way of life. There are people who choose to smoke marihuana, while some are obsessed with golf and others compulsively gamble. […] A society that extended the protection of its Constitution to such personal preferences would be ungovernable. [D]Such lifestyle decisions are not fundamental choices that go into the very essence of what it means to enjoy individual dignity and independence. “

As evidenced by this decision, the desire to access non-essential businesses (SAQ and SQDC) or to engage in non-essential activities has nothing to do with what the country’s basic law intended to protect.

By the way, the Supreme Court of the United States (Jacobson, 1905), the French Constitutional Council (Decision No. 2021-824 DC, 2021) and the European Court of Human Rights (Vavřička, 2021) have ruled perfectly valid compulsory vaccination strategies and vaccination passports, insofar as the limits imposed were deemed to be proportionate to the legitimate aims pursued.

Not only is the argument based on freedom-independence very fragile, but it ignores the fact that alongside the right to be free to do something, there is the right to be able to do something (freedom- capacity). Individual autonomy guaranteed by freedom only has meaning if one has the means to exercise it, which the English expression freedom to makes perfectly good.

Children deprived of school, my students trapped at home, patients whose operations are postponed can all claim respect for their freedom, that is to say their right to access the means that will allow them to project themselves. in the future as autonomous people capable of making meaningful choices. The right to health and the right to education are the cornerstones of freedom-capacity. And these rights, it is the State, and the citizens through it, which can ensure the realization of them. The state is not just repression.

Freedom, contrary to what is said, is not a sphere of selfish impermeability, but the result of a social relationship. Robinson Crusoe had nothing to do with freedom. Everyone’s personal autonomy depends on the will of the majority (speaking through the mouth of the State) to remove them from their dependence in a given sector (freedom-independence), as well as on the will of this same majority to give it the means to flourish by guaranteeing it a competent education system, an efficient health system and a social safety net allowing it to escape poverty (freedom-capacity).

In short, it is reductive to say that the pandemic simply opposes the negative freedom of some to the power of the majority or the state. Rather, it forces us to come to terms with two forms of freedom and with a definition of personal autonomy that takes into account the fact that it cannot truly flourish without the help of others.

It is therefore a shock of freedoms that we are talking about. No one is holding the moral high ground in this debate.

That said, the imposition of a vaccination obligation, or a vaccination passport limiting access to essential businesses or activities, cannot be done cavalierly. The legality, but also the legitimacy, of the vaccination strategy, that is to say its social acceptability, will depend on the nuanced nature of the modalities of its implementation.

It is therefore absolutely fundamental that this strategy be adopted by means of a law and not a simple decree; that its adoption be preceded by a multi-party parliamentary process accompanied by consultation with medical authorities, unions, experts, employers, etc .; It is possible to do such a thing in a relatively short time. On this occasion, the objectives of this exercise, the implementation mechanisms and the types of sanctions that will be most appropriate can be specified.

If we reduce freedom to the right to say no, then inevitably we will say no to those who, the youngest in particular, understand freedom as the possibility of embracing life with enthusiasm and with a minimum of hope.

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