Since the start of the pandemic, anyone wishing to enter Australia has had to contend with one of the strictest immigration and quarantine regimes in the world. While requirements have been loosened for vaccinated visa-holders, tough rules remain in place for the unvaccinated.
Naturally, Australian residents and others around the world were surprised when unvaccinated tennis star Novak Djokovic announced that he was travelling to Melbourne to defend his Australian Open title, having been exempted from quarantine requirements.
The exemption granted to Djokovic looked to many like the rules were being bent for the benefit of the rich and powerful in a way that wouldn’t have happened for an ordinary citizen. The virus hasn’t given him a free pass for being a high-profile tennis player — so why should immigration authorities?
While at the time of writing, the outcome of Djokovic’s visa troubles was uncertain, the double standard of rules raises a much bigger question about the philosophy of law: can the application of a rule be so unfair that we have no valid reason to follow it?
The issue of “one rule for them and another for the rest of us” raises its head frequently. Throughout the pandemic in the UK, the rich and powerful have claimed — often unbelievably — that their actions were permitted by rules that restricted the rest of us. Consider UK’s former PM aide Dominic Cummings’ claim that his 50-mile round trip from Durham to Barnard Castle was a “local journey”, or Downing Street officials’ assertions that their late-night cheese-and-wine gatherings were not parties, but work meetings.
Granting the tennis star exemption from Australia’s strict Covid protocols presents a legal problem of having one rule for some and another one for everyone else
The consequences of a system where one rule appears to apply to a select few, and another to everyone else, were warned of by legal philosopher Gustav Radbruch. Given his service as German minister of justice during the Weimar Republic and later, as a respected legal academic, we would do well to draw from his views on how the law is made and upheld.
Radbruch suggested that a rule that does not treat like cases alike could be so unjust that it undermines the stability of the entire legal system. If the wider population thinks that a person is exempted from a rule for no good reason, everyone else would (rightfully) question the point of the rule. They may ask why they should continue to follow it — if enough people do this, the reason for having the rule in the first place disappears completely.
The real drop in public adherence to Covid guidelines following Cummings’ trip to Barnard Castle is a good example of exactly this.
This phenomenon is not only damaging for the rule in question, but for the system as a whole. If citizens lack confidence in an individual rule, they may be more sceptical of other rules and refuse to follow them too. Before we know it, we may reach a critical mass where there is so much uncertainty about which rules ought to be followed at all that society will become ungovernable.
Radbruch concludes that a rule that doesn’t treat like cases alike can’t be a law at all. This is because a key requirement of a legal system is that it needs to be stable, which means that people need to know what the law is and when it applies. If a rule doesn’t treat everyone equally, then it does the opposite and increases doubt and uncertainty about what the law even is. And if enough rules exist that create uncertainty about what the law is and when it applies, the system will collapse. A rule that undermines a legal system in this way can’t really be law at all, and legal officials shouldn’t create or uphold them.
Send him home
Radbruch would probably conclude that Djokovic’s exemption to Australia’s vaccination requirement was illegitimate and should be rejected. Treating like cases alike requires that we ask only whether Djokovic is vaccinated — he is not — so the government would be right to withdraw his visa.
Djokovic fans might claim that his recent Covid infection means his immunity is equivalent to vaccination and that this should be enough, but regardless of these details, the perception is clearly that Djokovic was treated differently from other visitors. Therefore, the validity of the rule is questionable.
The fact that the Djokovic case has been so ambiguous means we can’t fully understand what the law even is. The stability of our legal system depends on those who make the rules being transparent about those rules — and the reasons behind any exemptions.
Covid restrictions are already being questioned, and Djokovic’s situation deteriorates them further. Studies from almost a year ago show that people already began to break Covid rules when they saw more privileged people getting away with flouting them. It is likely that this disillusionment will only increase as people’s patience wears thin.
The writer is Lecturer in Law, Newcastle University Republished from The Conversation
Published in Dawn, EOS, January 16th, 2022