ABSTRACT
Proportionality is the test used by courts in the liberal democratic world to determine the justifiability and legitimacy of repressive state measures. This chapter considers whether the lockdowns imposed in the context of the COVID-19 pandemic were proportionate and thus legally and morally justifiable. It points out three pathologies of the political and public discourse around lockdowns, all of which relate to the final stage of the test, which examines the appropriateness of the balance struck between the severity of the restriction on freedom and the public interest in protecting health and lives. First, by focusing in a one-sided way on the protection of life, the public and political discourse neglected the question of the severity of the restriction on freedom and, relatedly, the costs of lockdowns, in particular their social, medical, psychological, cultural, and economic costs. Second, by de facto placing a taboo on the question of the relevance of the age distribution of the people dying from COVID-19, a proper consideration of this relevant factor was prevented. Third, the considerations that were regarded as determinative in striking the balance between protecting life and guaranteeing freedom, namely the protection of the health services from being overburdened and/or the prioritisation of human life as the highest value, were normatively unconvincing. Because of the complexity of, in particular, the empirical questions, this chapter cannot reach a confident conclusion as to the proportionality of the recent lockdowns. It does, however, show that the public and political discourse was biased in favour of lockdowns, and offers a doctrinal structure as well as normative reflection on how to conduct the proportionality assessment properly.
