Is the Law really "failing to protect the public's health"?
And how well did it protect civil rights during the COVID-19 pandemic? A conversation with ChatGPT.
In October 2022, the new Lincoln Alexander School of Law at Toronto Metropolitan University hosted a talk titled “‘Please Wear a Mask’: The Failure of Law to Protect the Public's Health” by Dr. Jacob Shelley, Associate Professor of Law at Western University in London, Ontario. I couldn’t bring myself to attend, so I am only going by the text of the invitation for the following summary and discussion. In essence, Shelley seems to argue that current Canadian laws and their application place too many limits on the severity of public health measures.
Using the example of the appeal for voluntary face-covering during the COVID-19 pandemic, Shelley identifies a failure of the historic principle salus populi suprema lex, i.e. “the health of the people is the highest law”. The law, e.g. infectious disease acts, and the courts should have supported mask mandates — to save lives. In my view, the law system has failed in a different way, by attempting to make decisions in principle without regard to the developing evidence in the concrete situation. For example, with respect to masks used to “protect the public’s health”, surely Dr. Paul Alexander’s bibliography of “More than 170 Comparative Studies and Articles on Mask Ineffectiveness and Harms” or my colleague’s research on mask harms cited at the beginning of “Elements of Propaganda in the … Narratives of 2020-2022” ought to be consulted.
Among a dozen or so draft Substack posts, I’ve had a few keywords saved to write a discussion of Shelley’s position. Coincidentally today, another pointer to ChatGPT, the AI-driven language bot that’s been all the rage for a while, dropped into my inbox via the CA4CE email list. The message was about a blog post at Viable Opposition that included a rather impressive 500-word ChatGPT essay on the negative aspects of the Great Reset. I decided that I finally had to play with the bot myself. After a few convincing tests, I fed the machine several questions about the salus populi suprema lex topic to explore questions about interpreting evidence and balancing individual and collective rights and responsibilities.
Since I was able to confirm that “OpenAI will not claim copyright over content generated by the API for you or your end users” and “OpenAI hereby assigns to you all its right, title and interest in and to Output”, I am sharing the edited conversation here. Note that my edits affect primarily my own questions and the order and length of the answers; the text presented as ChatGPT’s answers below is mostly unedited with the exception of a deleted claim regarding COVID-19 vaccine safety, which can be explained by the bot’s outdated 2021 knowledge cut-off.
Claus: A recent university event was titled "Please Wear a Mask: The Failure of Law to Protect the Public's Health". The speaker used the phrase salus populi suprema lex to call for stricter COVID-19 public health measures. Could you explain the phrase and its limitations?
ChatGTP: The phrase salus populi suprema lex is Latin for "the welfare of the people is the highest law". This phrase is often used to justify actions taken by governments and other authorities in the interest of protecting the health and safety of the public. However, while the intention behind this principle may be noble, it is important to recognize its limitations and potential drawbacks.
One limitation of the maxim salus populi suprema lex is that it can be used to justify actions that infringe on individual rights and autonomy. For example, in the context of the COVID-19 pandemic, strict public health measures such as mandatory mask-wearing and lockdowns may be seen as necessary for the welfare of the population as a whole. However, these measures can also restrict individuals' ability to move freely and make decisions about their own health and well-being.
Claus: Let’s take a moment to define what we mean by “bodily autonomy”, as this has been a red line for myself and others during the pandemic.
ChatGPT: Bodily autonomy refers to an individual's right to control and make decisions about their own body, including decisions about medical treatment, reproduction, and physical integrity. It is the concept that individuals have the right to make choices about what happens to their body without interference from others.
This includes the ability to make decisions about medical treatment, such as the right to refuse treatment or to choose from different treatment options. It also includes the right to control one's own reproductive choices, such as the right to access contraception and safe and legal abortion. Additionally, bodily autonomy encompasses the right to physical integrity, which includes the right to be free from physical harm, abuse, and discrimination.
Bodily autonomy is a fundamental human right and is recognized in various international human rights laws and conventions, such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women.
However, bodily autonomy is not always respected in practice, particularly for marginalized groups such as women, people of color, people with disabilities, and members of the LGBTQ+ community. They may face barriers to accessing healthcare and reproductive services, and may be subjected to forced medical procedures, sterilization, and other forms of physical harm.
Claus: Returning to the role of the Law to protect the public’s health, isn’t it difficult to evaluate the evidence for what constitutes "health" and "safety", and which measures are reasonable and proportionate? Do we actually have a right to be healthy and safe?
ChatGPT: Evaluating what constitutes "health" and "safety" can be a challenging task. Different individuals and groups may have different opinions and perspectives on what constitutes a reasonable and proportionate measure to protect public health. For example, some may argue that a strict lockdown is necessary to curb the spread of COVID-19, while others may argue that such a measure is too restrictive and causes more harm than good.
Another limitation of the maxim salus populi suprema lex is that it can be used to justify actions that are not based on sound evidence or scientific research. For example, some public health measures may be implemented based on anecdotal evidence or political considerations rather than scientific data. In such cases, it is important to critically evaluate the evidence and ensure that the measures being implemented are reasonable, proportionate, and evidence-based.
Lastly, the question of whether we have a right to be healthy and safe is a complex one. On one hand, access to healthcare and safe living conditions are essential for individuals to live a fulfilling life. On the other hand, it is important to recognize that there are limits to what can be achieved in terms of health and safety, and that some risks are inherent in life.
Claus: Given these complexities, would you agree that public health measures should emphasize voluntary participation rather than coercion?
ChatGPT: There are several reasons for this guiding principle in public health.
First, voluntary participation is more likely to lead to buy-in and compliance from the population. When individuals feel that they have a choice in whether or not to participate in a public health measure, they are more likely to understand and support the rationale behind it. This can lead to greater adherence to the measure, which is critical for its success. In contrast, when individuals feel that they are being coerced or forced to participate, they may be less likely to comply or may even actively resist the measure.
Second, voluntary participation respects individuals' autonomy and rights. Coercion can be seen as a violation of individuals' autonomy and can lead to feelings of resentment and mistrust. In contrast, voluntary participation allows individuals to make their own decisions about what is best for their health and well-being. This can be seen as a more ethical approach to public health.
Third, voluntary participation allows for the consideration of individual circumstances. For example, some individuals may have medical or personal reasons why they cannot participate in a particular public health measure. Voluntary participation allows for these individuals to be taken into account and for alternative measures to be put in place. In contrast, coercion may not take into account individual circumstances, which can lead to unintended consequences.
Fourth, voluntary participation allows for the collection of data and evaluation of the effectiveness of the measure. When individuals voluntarily participate, it is possible to gather data on who is participating and the impact of the measure on the population. This can be used to evaluate the effectiveness of the measure and make adjustments as needed. In contrast, when coercion is used, it can be difficult to gather data and evaluate the impact of the measure.
Claus: Well, too bad that the authorities went all in with mandates and coercion in the COVID-19 response! Looking at the other end of the baton, do you think that existing laws have sufficiently protected our civil rights during this pandemic?
ChatGPT: The extent to which the law protected civil rights during the COVID-19 pandemic is a complex and nuanced issue. There have been instances where the law has been used to protect civil rights, such as through court rulings that have struck down discriminatory or arbitrary restrictions on individuals' rights to free speech, assembly, and religious worship.
However, there have also been instances where the law has failed to adequately protect civil rights during the pandemic. For example, some states have implemented strict lockdown measures that have been criticized for being excessively restrictive, arbitrary, and disproportionately impacting marginalized communities. Additionally, discriminatory practices have been reported in the distribution of COVID-19 vaccines, where some communities have been disproportionately affected by the pandemic and not received the vaccine as much as other communities.
Furthermore, the law has been used in some cases to justify the use of excessive force and abuse of power by law enforcement and other authorities during the pandemic, which has led to the violation of civil rights. It is important for the law to continue to adapt and evolve in order to effectively protect civil rights during public health crises.
Claus: Thank you, ChatGPT, for this informative and balanced conversation.
So, what did you think of my new best friend’s performance? I find ChatGPT’s answers to be quite eloquent and smooth, if a bit “stilted” as one colleague put it. The bot obediently responds to the user’s input; as I generated the answers first and then adjusted my posted questions, don’t blame it (correct pronoun??) for the answers and instead credit me for the composition!
In terms of writing efficiency, I foresee significant upfront value in generating a text basis for human editing. The bot could be a real help in overcoming writer’s block, if asked the right questions. After this experience, I only have a faint hope that AI will not eventually become good enough to produce original, colourful, facetious, or sarcastic writing...
With respect to salus populi suprema lex, “the health [or safety] of the people is the highest law”, I think we’re missing a second part to the phrase, ...quidque est salvam iudico ego, “…and I get to judge what’s safe!” The COVID-19 pandemic has shown that we have a major problem with assessing and updating scientific evidence for decision-making. It is not acceptable that we have to leave the assessment of what crisis management tools are safe and effective to one cartel of “experts” without continuously listening to all other stakeholders and sincerely reviewing the initial response in light of new findings and emerging concerns. “The Law” will not help with that, at least not until judges and arbitrators start reviewing current evidence and competing interpretations rather than taking “judicial notice” of the executive and legislative branches’ positions.