Personal Decisions, Public Consequences: On Distinguishing between the Vaccinated and the Non-Vaccinated in Coronavirus Management (preprint)

We here sketch – in brief, and with no pretense of completeness – a moral and legal framework for analyzing distinctions between the vaccinated and the non-vaccinated, as a part of the efforts to reopen businesses and public institutions in Israel. We discuss the relevant constraints on personal liberty and what could justify them, what incentives may justifiably be used and in what circumstances, and who should bear the costs of the decision by some not to be vaccinated. While some of the particular applications are particular to Israeli circumstances, the general considerations may be helpful in other countries.We argue that the collective attributes of the pandemic affect the measures required to cope with it, as well as their morality and legality. We discuss four ends that may justify distinctions between the vaccinated and the non-vaccinated: reducing the numbers of infections and controlling pandemic-related harms and derivative, general, health harms; gradually returning to economic and social normalcy; imposing the costs of the decision not to be vaccinated on those making it; and incentivizing inoculation. Multiple measures could be designed to achieve these ends and not all means are justifiable. Given the considerable variation in the design and implementation of inoculation-based distinctions, we settle for suggesting general guidelines for analyzing the proportionality and morality of possible measures. In general, we argue that measures that preserve access of the non-vaccinated to essential activities and maintain their ability to participate in other activities either remotely (as with remote teaching or studying) or by providing a ‘proof of safety’ (e.g., a recent negative COVID test) are likely to be proportional. In addition, we reject the claim that distinguishing between the vaccinated and the non-vaccinated constitutes impermissible discrimination. A crucial assumption here is that vaccination is available to all residents, namely there are no residents who want to get vaccinated but cannot (other than for medical reasons, see below). Under this assumption, in the context of lifting COVID-related restrictions, the vaccinated and the non-vaccinated are relevantly different groups. Opening up activities while conditioning access upon vaccination (or a recent negative test) does not significantly harm the non-vaccinated compared to the COVID-restrictions (implemented in Israel during the past year) – rather, it benefits the vaccinated. And the non-vaccinated are always free to change their decision and come to enjoy the benefits – health-related and others – of the publicly available vaccines. Of course, any acceptable model will have to include arrangements for those who cannot (rather than will not) be vaccinated (i.e., for medical reasons), and should also include a discretionary mechanism providing specific arrangements for exceptional, hard-to-predict-cases.

Using Complexity to Calibrate Legal Response to COVID-19 (preprint)

The global effort to fight the COVID-19 pandemic triggered the adoption of unusual legal measures that restrict individual freedoms and raise acute legal questions. Yet, the conventional legal tools available to analyze those questions—including legal notions such as proportionality, equality, or the requisite levels of evidence—implicitly presume stable equilibria, and fail to capture the nonlinear properties of the pandemic. Because the pandemic diffuses in a complex system, using complexity theory can help align the law with its dynamics and produce a more effective legal response. We demonstrate how insights from complexity concerning temporal and spatial diffusion patterns, or the structure of the social network, can provide counter-intuitive answers to a series of pandemic-related legal questions pertaining to limitations of movement, privacy, business and religious freedoms, or prioritizing access to vaccines. This analysis could further inform legal policies aspiring to handle additional phenomena that diffuse in accordance with the principles of complexity.