Law in a time of COVID
In his address, “The Path of the Law”, delivered at the Boston University School of Law in 1897, Oliver Wendell Holmes Jr achieved some notoriety in legal circles for his promotion of the so-called “Bad Man Theory”. Holmes was a revered judge in Massachusetts and ultimately on the United States Supreme Court. According to Holmes, the law exists as a profession because people want to know when they are likely to face the public force of the courts, and they pay lawyers to predict as much. A mastery of the law therefore requires an understanding of the limits of the law. In order to do so, Holmes theorised, one needs to view the law from the perspective of a “bad man” client; one not caring for any ethical rule observed by his neighbours, but anxious to know what the law is so as to avoid conflict with it. Holmes’ point was that confounding morality with law was likely to detract from a mastery of the latter, and at all events to lead into error.
Addressing the Cincinnati Law School on its 75th anniversary in 1908, James Barr Ames, then Dean of Harvard Law School, sought to highlight the positive influence of morality on the development of the common law. Dean Ames tracked the development of various principles of English law, which for a time produced harsh consequences, until morality intervened to even the score. He noted, for example, that self-defence was once no bar to an action for battery; a defendant was liable to make reparation for acts causing loss irrespective of the circumstances. Eventually, the standard of strict liability for acts causing loss gave way to a standard of liability based on the reasonableness of the actor. For Ames, the influence of morality was what distinguished primitive law from more sophisticated systems of justice. Laws that target motive exemplify this most sharply: consider the difference between murder and manslaughter in the criminal context, and equitable liability for unconscionable conduct in the civil context.
The respective addresses of Holmes and Ames summarised above reflect two important considerations of legal theory: the promotion of certainty on the one hand, and the need to ensure that the law reflects common notions of fairness or morality on the other. These two considerations are of course not mutually exclusive. Judge-made law is informed by one as much as the other. Judicial outcomes, especially in contentious areas, often represent a balancing of the two interests, with the facts of the case acting as the fulcrum.
Invariably unique and often unusual, the facts of a case are the sole feature which, when properly understood, drive the decision maker to ask, rhetorically, “How can the result be otherwise?” Sir Owen Dixon’s judgments are memorable in that they commenced with a clinical excursus of the facts, logically ordered and aligned, so that when it came to the application of the law, the result seemed obvious and inevitable. Facts which on their face might have appeared of minimal importance were shown to be critical in the result. Frequently, the error of the decision maker under review was not in the application of legal principle per se, but in the failure to appreciate the importance of some particular feature of the case.
We are reminded at law school that jurisprudence from the First and Second World Wars must be understood in the context of the unprecedented circumstances that our country then faced. Undoubtedly this is so. But it should not be thought, at least universally, that decisions from this period are fundamentally flawed or should necessarily be afforded less weight. The outcome in those cases was driven by the unique circumstances in which they arose, and by a proper and complete assessment of the factual circumstances which led the judges to favour one argument over another. The difficulty in an historical context is that it is almost impossible to appreciate the context in which those matters arose, after the fact and excluding hindsight.
And so we come to COVID-19. At the time of writing, the country is in the midst of the pandemic. Governments are imploring landlords and tenants, employers and employees, and the general citizenry to work together to deal with the unique challenges that we all are facing, bearing in mind there will be life on the other side. In response to the dual health and economic crises the pandemic has thrown up, laws are rapidly being enacted which curtail individual freedoms and rights. For example, it is currently an offence to gather socially in groups of more than two persons, and landlords are presently subject to a six-month moratorium on evictions of tenants who fail to pay rent. At the federal level, insolvent trading laws have been eased.
Even beyond these legislative interventions, the health and economic implications of the pandemic will inevitably throw up legal challenges which force the courts to consider the appropriate balance between broader considerations of legal certainty on the one hand, and common notions of fairness or morality on the other. In the present factual context, a result that may have been considered unlikely prior to the pandemic may be considered appropriate.
Equitable doctrines (and their statutory analogues), which focus upon the conscience, may loom large. Inquiries into a person’s motive for acting a certain way may have heightened importance, for example where the occasion of the pandemic is exploited for a collateral purpose. Circumstances may arise in which the termination of an agreement or exercise of a power may be held to amount to an unconscientious insistence on strict legal rights, falling foul of doctrines such as estoppel or unconscionable conduct. On the other hand, contractual promises which were hitherto enforceable may be deemed to have been frustrated by the pandemic. Where this is the case, issues of restitution may arise, as courts grapple with the difficult question of determining where losses should fall.
In the area of torts, the reasonableness of conduct occasioning loss will fall to be assessed against the backdrop of the pandemic, most obviously in the area of medical negligence. The standard of reasonable care expected of a medical practitioner or hospital in the grip of a pandemic will naturally deviate from that expected at other times. Similarly, it is not difficult to conceive of issues arising in the area of causation, in which courts are generally required to consider whether or not and why liability ought to be imposed on the negligent party in all of the circumstances.
In both criminal and civil contexts, there is the prospect of trial by video link. The relative remoteness of this procedure may have implications on the assessment of the credibility of witnesses. This may in turn have implications for jurisprudence concerning appellate intervention into the fact-finding process. Traditionally, appellate courts have afforded deference to the findings of the trier of fact, on the basis that the latter possesses a distinct advantage in observing the demeanour of witnesses giving evidence. In the context of trial by video link, that advantage may be diminished. Appellate courts may also come under pressure to view video excerpts of trials conducted by this method, at a time when the Victorian Court of Appeal’s decision in the Pell case to do so is being scrutinised by the High Court (judgment reserved at the time of writing).
Finally, the COVID-19 pandemic may see novel issues arising in the area of constitutional law. Presently, several states and territories have sought to close their borders to non-residents in response to the crisis. This has generally involved a requirement to self-quarantine for 14 days upon entry, although at least one state, Queensland, has indicated that it intends to refuse entry to non-residents. The question thus arises whether such laws offend section 92 of the Constitution, which provides that trade, commerce and intercourse between the States shall be absolutely free. While the health objectives seem plain enough, the question of whether any incidental burden on section 92 is reasonably appropriate and adapted to achieving the laws’ stated purposes might be open to debate. Assuming residents of the particular state are able to move about relatively unimpeded, the justification for denying the same right to non-residents may invite scrutiny. Again however, the current context may lead to results that might be considered unusual in other contexts.
More generally, as state, territory and federal governments act swiftly to implement laws designed to respond to the outbreak, it is not difficult to conceive of challenges being made to their legislative powers. The respective interests of state and subject arising in the context of the pandemic may drive the development of constitutional law in unique ways. Importantly, laws which lack a constitutional foundation will need to be struck down, however well-intentioned they may seem.
Like every other aspect of society, the COVID-19 pandemic will make its mark on the law over the coming months and years. There are many areas in which jurisprudence may shift or develop in response to the unique circumstances presently facing society, in ways that were unpredictable or even unthinkable just a few months ago. The lawyer advising the “bad man client” may have a tough time of it, in as much as the limits of permissible conduct may be difficult to define, and considerations of fairness or morality may be brought into sharper contrast. Cases will need to be assessed, in the first instance by lawyers and ultimately by courts, having regard to a raft of relatively unprecedented circumstances. Assuming we all have our health, there will be plenty to do.
 Collected in Jurisprudence in Action, Baker, Voorhis & Co Inc, New York, 1953.