There’s a scene in Beethoven’s Fidelio where a group of prisoners stumble into the light in a stolen moment out of the cells. “O what joy to breathe freely in the open air,” they murmur, “only here is life.” Empathy with the imprisoned requires little imaginative leap these days. We are all prisoners now. The restrictions on our liberties are substantial, the loss of freedoms to socialise, wander and work hitting bon viveur, Flâneur and workaholic alike.
Fidelio shares with other cultural artefacts from Solzhenitsyn to Shawshank Redemption the intuition that just as we appreciate electricity most when the power is out, so we might best understand freedom in its absence. Freedom, approached obliquely, emerges as a fragile thing, operating through three basic modes—memory, hope and finally release. Caught in suspended animation, we make extensive use of the capacity to cast our mind back and forward. Living vicariously through our past and future selves, we can be forgiven for giving the past a sepia tinge and the future a utopian gloss.
These psychic aspects of freedom are important when considering questions of law and liberty in lockdown conditions. An argument recycled in times of crisis is that as the need for power increases, the claims of liberty must recede—a variant of the old maxim “amidst the clash of arms, the laws are silent.” The argument’s chief flaw is that it misconstrues the correspondence between liberty and power as a zero-sum game. In reality the relationship between power and liberty is not simple, their interplay becoming more complex as we enter crisis mode.
When things go well, the state, though everywhere, can recede almost to the periphery of our field of vision. In lockdown we sense its presence everywhere, even at home. Focussed on a single task, it demands more of us than we are used to. We become unusually sensitive to its pronouncements, sensing it speak directly to us. Our reaction is ambivalent. Gratitude for an agency capable of coordinating sufficiently large-scale action combines with fear of a force potent enough to reorder every aspect of our lives—a state of mind Hobbes captured in the single word “awe.”
The gratitude we tend to feel when action is taken on our behalf usually equates to greater leeway for government. But while this is not initially agonistic political space, it can rapidly become febrile. Living in lockdown produces an anxious and muted public, but it also makes us extra alert to the character of state power. We often assume that this is a matter of monopolising coercive force. But it stems as much from the capacity to coordinate social action through rules, a power that rests ultimately on our willingness to regard those rules as authoritative. We internalise rules, treating them as binding, not because we think they are necessarily right or good but because we accept the state’s authority to make them. One reason we do so is that otherwise social life would be chaotic. Rules produce certainty where there might otherwise be none.
Rules, connecting us as subjects to a common authority, bind us together as citizens. Attuned to regulative power—the collective’s power over the individual expressed through law rather than force—we are more alert to its possible misuse. Crises can be manipulated, Orbán-style, and it would be unwise to ignore how often “temporary” restrictions live on after the emergency that gave rise to them dissipates. But a more pressing concern is to limit the sense of the walls around us closing in. Freedom, diminished in lockdown, becomes more precious. The rulebook on rulemaking needs to be observed, despite testing conditions. Clear, properly authorised rules must be communicated to coordinate not just our action (and inaction) but also the actions of the officials who enforce them. Special care must be taken not to act in ways that diminish the hope of a return to normality.
But there’s still soapbox value to be had in facile contrarianism. Jonathan Sumption criticises the government’s decision to impose lockdown conditions on the British public: it “is our business, not the state’s, to say what risks we will take with our own health. We are not fools or children needing to be told by ministers what is good for us, and forced by police officers to do it.” The argument in effect asks the government to renege on its cardinal duty to ensure the safety of the public (salus populi suprema lex). Given the non-negligible risk of massive social dislocation represented by Covid-19, especially at the time of the initial lockdown decision, Sumption’s free market for pandemic decisions is recklessly cavalier. His case rests on two implausible assumptions: that we can identify and meaningfully assess scientific evidence, still scattered and uncertain, which most of us cannot understand; and that we are able to act on that decision once taken—easier for a retired Supreme Court judge to assume than, say, a Wetherspoons employee.
To me, down to its swashbuckling overtones, this feels a little reminiscent of an adolescent’s dream of freedom. The solipsistic individual as hero, carving his own fate, without fear or favour. With so much of our associative life squeezed into boxes on a computer screen, we see this for what it is: the freedom of the heath, barren and exposed. Freedom inheres not in the self standing in isolation from others, but in the self recognising itself in and through relations with others—partners, friends, colleagues, neighbours, officials. Conditioned by both life and law, freedom is formed through associational ties but also the product of statecraft and regulation. Sumption is right to remind us of the threat the state’s regulative power can pose to liberty. But he seems blind to the opposite point, one glaringly obvious in crisis moments, that only law can guarantee the social structures that make free life possible.
