The conversation about facemasks is probably as emblematic of our age as any. I’m not talking about the extent to which the science demonstrates the protective effect of a facemask. We are all (children and adults) capable of understanding that the way in which scientific data is interpreted and applied in public policy and considered in the context of risk is anything but straightforward.
As I see it, it’s quite simple to articulate the complexity really and I have explained it as such to my primary school aged children: The evidence shows that facemasks stop other people catching the virus. They are not a fool proof method of preventing the spread. All sorts of factors mitigate their effectiveness – not just what type of mask, how well it fits, but whether the wearer wears it properly and so on. Wearing a facemask may have a (small) impact on the wearer being protected but it has a significant impact on stopping individuals who are contagious and do not realise it, infecting others. There you are, it wasn’t that hard was it? If you wear a facemask in certain social contexts – like shops, crowded spaces like public transport, and so on – and if you are carrying the virus, there is a good chance the mask will stop you infecting other people.
The reason why it seems to me the debate is emblematic of our age though is because the people who argue they are being muzzled or forced to wear a face nappy are essentially proposing a radical libertarianism in which the individual should not be forced, under any circumstances, to do anything by the state – regardless of truth or science. It’s a dog-eat-dog world in which the only person I conceivably have to care about is ‘ME’ and anyone or any state that tries to constrain my right to freedom is fundamentally at odds with ME.
For years, I have taught about the delicate balance between obligations and rights in Judaism and Jewish law. The implied rights in Judaism, in some ways, are derived from the obligations of the individual to others. To put it another way – how do we know there is a right to life? Because the ten commandments oblige us not to kill. Jewish human rights philosophers have devoted many words developing a theory of rights from the Torah – usually derived from such ideas as being created in the image of God.
But that does not change the reality that the starting point in Jewish law (halakhah) is, generally, from obligations to rights. Our public discourse, in many respects is the inverse of this – it’s my right to something that leads to the State or fellow citizens being obliged in some way. Crudely put, we navigate a world in which our rights are generally protected in law but on the understanding that negotiating these individual rights in a world of individuals with the same rights leads to a need to make compromises when these rights come into conflict.
But now, the government is being expected to talk in the language of obligation to others. Instead of individual rights or personal liberty and even ‘small state’ ideas, the government is being expected to find a way to talk about you and me being obligated and to do that with finesse. It’s an impossible ask really, because we’ve spent so long talking about ‘independence’ as a nation and knocking the ideal of liberal democracy, in which complex and conflicting positions can be contained in an imperfect but violence-free way. We could be forgiven for thinking that no government that has put so much stock in the idea of being independent, able to make our own decisions and laws, will be able to shift that national rhetoric to the opposite (if only at the individual level). Yet they were able for a while – remember when it was about the NHS? We accepted the lockdown because “Stay home, Save Lives, Protect the NHS” was a simple, compelling mantra. We got the rhetoric – this will save you, it will save your grandmother, it will save the people around you.
But facemasks are not a call for altruism. On the face of it, it looks like you’re wearing a facemask just for everyone else’s benefit. But that’s just not the case – there is a benefit to everyone if the virus is suppressed, the NHS resources able to care for people who have had their appointments cancelled or delayed and so on. And in accepting your duty, there is an implicit expectation that others accept their duty towards you too.
In thinking about whether Judaism has anything to offer the more general debate, I considered the laws about damages in which you might unintentionally inflict damage on your fellow or their property. But that assumes, within reason, a person should be able to enjoy use of their property and carry out their business unhindered except that they should avoid damaging others. Fair enough – but that is not the same as being compelled to do something to proactively and protectively save lives.
And so I kept coming back to the parapet on one’s roof. Deuteronomy 22:8 commands, “When you build a new house, you shall make a parapet for your roof, so that you do not bring bloodguilt on your house if anyone should fall from it.”
This law compels me to not just take responsibility for someone if I accidentally injure them in the natural course of life, but forces me to use my resources to protect the life of others. In Maimonides’ Mishneh Torah Murderer and Preservation of Life 11:4-5 we read:
אֶחָד הַגַּג וְאֶחָד כָּל דָּבָר שֶׁיֵּשׁ בּוֹ סַכָּנָה וְרָאוּי שֶׁיִּכָּשֵׁל בָּהּ אָדָם וְיָמוּת. כְּגוֹן שֶׁהָיְתָה לוֹ בְּאֵר אוֹ בּוֹר בַּחֲצֵרוֹ בֵּין שֶׁיֵּשׁ בּוֹ מַיִם בֵּין שֶׁאֵין בּוֹ מַיִם חַיָּב לַעֲשׂוֹת חֻלְיָא גְּבוֹהָה עֲשָׂרָה טְפָחִים. אוֹ לַעֲשׂוֹת לָהּ כִּסּוּי כְּדֵי שֶׁלֹּא יִפּל בָּהּ אָדָם וְיָמוּת. וְכֵן כָּל מִכְשׁל שֶׁיֵּשׁ בּוֹ סַכָּנַת נְפָשׁוֹת מִצְוַת עֲשֵׂה לַהֲסִירוֹ וּלְהִשָּׁמֵר מִמֶּנּוּ וּלְהִזָּהֵר בַּדָּבָר יָפֶה יָפֶה. שֶׁנֶּאֱמַר (דברים ד ט) “הִשָּׁמֶר לְךָ וּשְׁמֹר נַפְשְׁךָ”. וְאִם לֹא הֵסִיר וְהֵנִיחַ הַמִּכְשׁוֹלוֹת הַמְּבִיאִין לִידֵי סַכָּנָה בִּטֵּל מִצְוַת עֲשֵׂה וְעָבַר בְּ(דברים כב ח) “לֹא תָשִׂים דָּמִים”:
4 The same applies to a roof and to anything in which there is a danger and may seem to cause a person to stumble and die. For example, if a person had a well or a cistern in his courtyard – whether there is water or not within it – he is obligated to build a sand wall ten handbreadths high around it or to cover it in order that no person will fall into it and die. And so anything that is an obstacle that is a death hazard it is a positive mitzvah to remove it and to be protective from it and to be extremely careful regarding the matter. For as it says, “Take care of yourself and guard your life” (Deuteronomy 4:9). If a person does not remove and leaves the obstacle and causes danger, that person negates the positive commandment and transgresses, “Do not bring bloodguilt.” (Deuteronomy 22:8)
הַרְבֵּה דְּבָרִים אָסְרוּ חֲכָמִים מִפְּנֵי שֶׁיֵּשׁ בָּהֶם סַכָּנַת נְפָשׁוֹת. וְכָל הָעוֹבֵר עֲלֵיהֶן וְאוֹמֵר הֲרֵינִי מְסַכֵּן בְּעַצְמִי וּמַה לַּאֲחֵרִים עָלַי בְּכָךְ אוֹ אֵינִי מַקְפִּיד בְּכָךְ מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת:
5 There are many things that the sages forbade on account of them being a hazard to life. And anyone who transgresses them and says ‘I’ll endanger myself and what does it matter to others’ or ‘I am not particularly careful about this thing’ – he should be beaten with lashes of disobedience.
Note the language here is clear – we have an obligation not just to deal with the consequences of our carelessness or accidental injury to others and their property. The obligation extends to our preventative measures to avoid causing accidental harm or death to anyone in the first place. This is the classical Jewish position and it is, in some respects, the rhetoric of the stance that the government would like us to adopt in wearing facemasks. They are the equivalent of dealing with a roof without a guard-rail, a well without a wall around it or any other death hazard – like our breath. The facemask is the guardrail of your exhalation, not a nappy, not a muzzle, but a sensible precaution to protect life.
The problem the government inevitably has though is not just how law and duty is framed in a liberal democracy – it is also that in the halakhic universe, the starting assumption is that everyone wants to follow the system because they trust it and believe in it to be divinely commanded. In a time where trust and truth have weak value in political discourse – and our politicians are not God’s mouthpieces; in a time where scientific expertise is a political commodity to be used when helpful; and in a time where you’re encouraged to use your common sense and interpret the guidelines for yourself – In that time, you’ve got a massive problem on your hands persuading anybody to do anything out of obligation that is not wholly driven by self-interest. But then that’s where leadership can come into its own in reframing a public discourse and a societal perspective on duty and responsibility to others, not just myself.