Justice in Emergency1
Takayuki Kawase
Abstract: This article purposes to consider how should the government or law respond to theemergency of pandemic caused by COVID-19. First, I argue that the frustration and anger people
feel during pandemic is not caused by pandemic, but pandemic only revealed people’s underlying
awareness of unfairness in general regardless of pandemic. Second, I consider the value of the ruleof law by comparing deontology and consequentialism. Basically, consequentialism is supposed toprefer flexible extrajudicial measures to the strict rule of law. However, I argue thatconsequentialism can promote the value of the rule of law if it is combined with conservatism.

Over the past year and a half, unprecedent and drastic global changes have been a source ofconsternation for people in most societies. Some of these people were (and still are) in despair, andothers seem to pretend to be calm.
Sometimes, in a crisis, the essence of things becomes clear. Be it at an individual or societal level,
things that have been brushed under the rug during normal times can no longer remain hidden in timesof crisis.In an emergency, where conventional wisdom is no longer valid, people try to see the essenceof things, which is exactly where philosophy comes into play. If, during an emergency, many of us
become philosophers and begin to rethink ourselves and our society, then the COVID-19 crisis is aunique opportunity for this.
1. On Risk Assessment - pluralism or fragmentation(1) All evaluations are multidimensional, and absolute correctness should not be assumed.
Saying “COVID-19 only exists in your head,” may sound suspicious and occult, but I believe it to
be true to some extent. In more serious terms, risk assessment should be considered as something thatcan only be claimed to be correct subjectively, or at best inter-subjectively, and never objectively.
Subjectivity here is an individual’s idea, and if that idea is shared among several individuals, anintersubjective agreement is established. On the other hand, what I mean by objective is somethingthat is established independent of anyone’s subjective ideas.
And as I have argued in several separate papers, I do not believe that we should advocate for the1

This is the translation from Japanese original paper published by Akashi Shoten on 31st

March 2022.
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objective correctness of risk (or any other) assessment in general (Kawase, 2018; Kawase, 2019, pp.
60-61, 177-179). This is also true for risks associated with coronavirus infections, and the harmful
side effects of therapeutic drugs and vaccines against them. If there is an objectively correct andrecognizable answer for these kinds of questions, then in the event of conflicting views about risks ofinfectious diseases and vaccines, either one is correct and the other is wrong, or both are wrong.
Of course, COVID-19 infections are a problem of such enormous social consequence that it would
be inappropriate to suggest that the extreme views of individuals have the same credibility as those ofexperts or the general public.Therefore, in my opinion it is desirable to adopt an intersubjective
approach to this issue, not only to exclude objectivism, but also to reject subjectivism. The correct
answer is not naturally or inevitably determined independent of anyone’s opinion, nor is it somethingthat can be considered by each individual. Rather, it should be seen as something that is formed andshared in each industry or society.
In this context, conflicting views on the risks of viruses and vaccines do not mean that one is right,
and the other is wrong, but that both have their own validity and reasons. In other words, correctness
is not monistic, but plural. It is a given that political correctness and appropriateness differ from thosein epidemiology, not that one of them is normatively higher than the other. Nor should we assume that
there will always be a universal standard that encompasses both. Monism, which holds up a single
standard and demands that it be always applied to all cases, asserts its own rightness from animperialistic, superior perspective toward other industries and societies that have different standards,
values, histories, and contexts, and when this does not work, it may scorn such opponents as fools.
Pluralism, on the other hand, believes that each industry and society, has its own righteousness, andthat each of them should protect its own territory.
For example, the appropriate number of cycles of Ct value,when a PCR test is judged to be positive,
is a matter of customary practice and policy judgment of various industries, companies, andorganizations, and no appropriate answer can be obtained by ignoring such a context.
(2) Because of the division, there are feelings of alienation and complaints about injustice, which leads
to further division.
To say that justice should be considered pluralistic should not be to encourage division amongpeople who think differently about justice. Claims such as “I’m doing the right thing (voluntary selfquarantine) and everyone should be doing the same thing, so why doesn’t anyone understand,” or“masks don’t mean anything, so why do we follow suit without thinking,” expresses the frustration of
those who disagree with the risk assessment of COVID-19. It is interesting to think about why we canbe so irritated and audacious.
For one thing, by exchanging opinions about risk within a narrow circle of people who share thesame views, such as evaluating risk as small or large, we may be purifying and radicalizing our2thinking. It is sometimes pointed out that one of the reasons of this phenomenon is that the structureof information transmission has changed from mass media to social media. Anyway, we should neverthink that we have the monopoly on rightness.
As for the other background that generates people’s irritation, we may consider that it is a problem
that is never directly related to the new coronavirus infection and has only come to the surface in thewake of the emergency.
Why is it that people who are convinced by virus and vaccine conspiracy theories don’t trust what
the government, mass media, and their family and friends say? Various causes can be pointed out, but
the feeling of alienation, of not being listened to, of not being understood, is undoubtedly one of themost important. Much of the anger in the anti-vaccination debate is directed not at vaccines, but atsocial marginalization.
It is also important to note that this is not actual alienation, but only a “feeling” of alienation. At
least contemporary Japanese people have their rights and interests strongly protected by Japanesesociety (laws, etc.). We are never abandoned. However, if people do not have the opportunity to beaware of and understand this, they may feel that they are excluded from society, which may weaken
their motivation to actively contribute to society. This is a serious problem, given that the price is thatmany people fall into a sad vicious circle, further away from the chance of engaging in their society.
This is no longer a coronavirus problem or a vaccine problem. For those who expressed anger overthe headline “Diet member eats 100,000 yen dinner while state of emergency declared!” would they
have felt the same way if the headline had read, “Diet member eats dinner in front of convenience
store while state of emergency is declared”? From the viewpoint of infection prevention, the latter
may be more problematic. However, the anger is not directed at the lack of awareness of disease
prevention, but at the 100,000 yen. However, there might not be any legal or moral problem with the
100,000 yen, let alone as an infection control measure.Lack of trust, ability, and willingness tocommunicate, in relation to the other side of the wall of division and alienation, is a crisis of national
unity - a crisis of the state.
2. On the Rule of Law - Consequentialism or Deontology?
(1) Consequentialism prevails in emergency situations.
In the early days of the COVID-19 crisis, there were strong voices asking why the government was
not doing anything, especially regarding border measures at airports and the operation of pachinko
parlors. The less intelligent version of this kind of argument was one that lacked any understanding of
the value of the rule of law, that the government cannot and should not do things without legal rules.
This is something that is not worth refuting here. (Of course, this is a highly interesting issue in viewof the poor education of law in Japan.) Conversely, a more intellectual version needs to be taken
seriously. This version argues with a good understanding of the meaning and importance of the rule of3

law, but posits that in emergency situations, ignoring it and considering extrajudicial measures will, inthe end, better achieve the purposes intended by the existing legal system.
Let us now use the contrast between deontology and consequentialism to make the structure of thisproblem clearer. In this paper, we will understand that deontology is an argument that evaluates thenormative goodness or badness of an act or rule by the value inherent in the act or rule itself, whileconsequentialism is an argument that evaluates the goodness or badness of an act or rule not by thevalue of the act or rule itself, but by the goodness or badness of the content of the secondary results
they bring about. For example, the act of lying is normatively undesirable. However, in some cases, itwould be better to tell a lie, so as not to hurt anyone and to facilitate the relationship. In such a case,consequentialism thinks that lying is not bad because a lie improves the state of the world for the better,
whereas deontology thinks that improving the state of the world does not mitigate the wrongness of
lying. (Kodama, 2010, pp. 241-242)
Certainly, it is understandable that consequentialism would prevail in an emergency. According to
the deontology strictly demanding the rule of law, even if COVID-19 infections destroy health care,even if they kill many people, we must do what the law demands and not do what the law does not
permit. Such a deontology is uncompromising2. In contrast, consequentialists have no hesitation inflexibly discarding or picking up the obligations of the rule of law if the state of the world would bebetter off by ignoring the rule of law. In the first place, law is supposed to make society a stable andcomfortable place. If society is harmed by adhering to the law, it is counterproductive. Certainly, inpeacetime, the rule of law contributes greatly to the stability and prosperity of society. However, it canbe said that in emergency situations, extrajudicial measures to overcome them are normatively
required.
My position is that neither extreme and pure positions of deontology nor consequentialism isdesirable, and that it is important to strike a balance between the two, and the way to strike the goodbalance is not something that can be answered theoretically but should be sought in each individualcase. Therefore, it is possible to argue against extreme consequentialism from the viewpoint of
deontology, but here I would like to explain that even if we rely on consequentialism alone, there is aproblem with the theory of advocacy of extrajudicial measures in emergency situations.
(2) Evaluate the consequences in the long run.
I mentioned above that in emergencies, flexible consequentialism is more likely to gain people’s
approval than stubborn deontological arguments, but perhaps more accurately, I mean that in

To say that deontology is stubborn and consequentialism is flexible is actually just to say that there
are many such phenomena, not that it is a logically necessary implication. An extremely strict
consequentialist would never tolerate anything other than those actions and rules that would
optimize the state of the world.
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emergencies, an argument for evaluating consequences with a shorter time span is more likely to gain
people’s approval than in normal times. It means that people will be looking for more short-term results
or will be more short-sighted.
Since consequentialism only says that an action or rule is evaluated by its consequences, there is no
fixed correct answer intrinsically in consequentialism about what time span it should be evaluated in.
With an evaluation span of every day, today’s actions and rules that may bring about improvements intomorrow’s results may be evaluated as good in a future-oriented manner, or yesterday’s actions andrule applications may be evaluated based on today’s conditions in a past-oriented manner, or theevaluation span may be every 100 years, and matters 100 years from now or 100 years ago may beevaluated. So, when it comes to people becoming short-sighted in emergency situations,consequentialism does not say that it is good or bad.
So, the only argument I have, to reinforce my consequentialism, is from outside it, but it isconservatism, which says that evaluations and decisions should be made from a long-term perspective
and with caution. We must not forget that our present behavior can be evaluated by those who existed
long ago 3, and those who will exist in the future . What consequences will our behavior today havefor people in the distant future? What will people in the distant future say when they look back at us?
Additionally, in light of the values inherited from the past, are we not trying to bring about strange
results? An emergency is a state in which people’s thoughts become short-sighted. It is understandable
in a pandemic, but in such a case, it may be wise to have a conservative conclusion that requires abroad and long-run thinking.
Now, to return to the question at hand, if we adopt this position, what can we say about the value ofthe rule of law in emergency situations? You might say, “what’s the point of taking legal regulations
so seriously when people are dying right in front of your eyes?” Which is more important, the law or
human life? Indeed, when considered choice between this one life and the application of this specificlegal rule to this specific case, consequentialism is likely to require disregard of the law. However, if
we compare the number of lifesavings in the long term between whether the long-term and stableapplication of this rule of law is made, consequentialism may demand the rule of law.
Of course, even in the long run, it is conceivable that the stable application of the legal rules inquestion could have resulted in the loss of many more lives. Even then, it seems likely that what thelong-term, conservative consequentialist theory requires is the abandonment or revision (in accordancewith prescribed legal procedures) of these specific laws and regulations, and not the abandonment of
the rule of law itself.
However, the following counterargument may be made to this as well. The distinction between

Of course, in principle, our present behavior is never actually evaluated by those in the past.
Rather, it means that we should think about what that evaluation would be like if someone from long
ago were here today and evaluated us based on their values.
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individual specific rules of law and the general spirit of the rule of law is oversimplified. To be sure,the long-run consequentialist argument may not demand that we go so far as to abandon the spirit of
the rule of law in general in emergency situations, but it would also acknowledge that there are manyrules that are individually better left ignored (or implemented without following due process). As acompromise, they argue that a partial relaxation of the spirit of the law might be acceptable, in which
an emergency clause is prepared in advance in the Constitution or other laws, and broad discretionary
powers are granted to the executive on a provisional basis (e.g., for a limited period) if the conditionsof an emergency are met.
This could possibly be correct. I say “possibly” ambiguously because what follows is a question offact about how much compromising the spirit of the rule of law will have desirable consequences in
the long run, not something that normative theories like consequentialism or conservatism can answer.
My normative argument is that I want to discourage people from thinking shortsightedly, whether it
be in defense of the rule of law or in mitigation.
3. On the method of collective decision-making - Utopian or gradualist?
In an emergency, one reason of people being short-sighted is that they will want a quick, clear, andfirm policy (especially in politics). It is often said, “Our government is opportunistic and has noprinciples.” For example, it is correct to point out that there are no consistent standards for issuing andlifting emergency declarations and that they are ad hoc. However, it is my view that in such cases,
decision-making can only be, or rather should be, ad hoc.
In collective policy making, the search for a clear strategy requires the assumption that there is aright answer to how to deal with the problem and that we can recognize that right answer. Many of
those who seek a clear strategy rely, perhaps consciously or unconsciously, on such assumptions. The
same is true of the claim that “we should rightly fear the COVID-19” It sounds very wise to saysomething like this, but what exactly is the right thing to do?
Rightness, as mentioned above, is multidimensional and it should be considered natural that theanswer to this question will vary greatly between every individual, each group, and each industry. If
that is the case, it may be possible for an individual to act based on a subjectively held “correct answer”
based on a clear and firm policy, but it is misguided to expect the same performance from society as awhole4. The careful reconciliation of the claims and interests of individuals with a wide variety of

Therefore, the suggestion that “the government is hiding something” often misses the point. (I am
not sure how one can say they are “hiding something,” but that is beside the point.) It is not thatgovernments are hiding the right answers that are inconvenient for them; it is that they often do notknow what the right answers are. Often, though never always, governments and other authorities do
not possess as much information as those applying for their disclosure would expect. A skeptical
attitude toward government and power is extremely useful, but if it is done poorly, it is those who
seek to misuse power who will benefit from it.
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different correct answers is the method of collective decision-making for society, which can only be
piecemeal, incremental trial and error. There is no way one could suddenly come up with the bestanswer. We have no choice but to repeat the process of listening to the opinions of a variety of
individuals, trying out some measures, evaluating the results of them, and making minor adjustments
to the measures. There is no definitive goal to aim for, a priori, before trial and error. It is utopianismthat posits such an unchanging goal (Popper, 1945, pp. 1638-148. ).
It would have been much easier if the goal was fixed in advance and all we had to do was to go
straight for it. It is easy to see the results and progress of one’s efforts, and most importantly, there isno need to wonder, think, or debate about direction. However, we have no choice but to grope our way
through a foggy road. We must develop a spirit strong enough to endure this frustration. It is
understandable that people are anxious when they do not have a clear answer, but isn’t the attitude ofsimply waiting for the government or other authority to give us an answer, evidence that the spirit of
the modern independent individual has not yet been acquired?
The spirit of waiting for easy answers from someone is vulnerable to manipulations. If agitators
who advocate a clear right answer or utopia use it for some intention, it may lead society to an
unwanted consequence and keep us from solving the problem. For a society to be strong, theindividuals who make it up must be strong. The COVID-19 is a very good opportunity for us to change.
I hope that our society, and by that, I mean each one of us, will be reborn even stronger, tougher, andkinder to others than before COVID-19.
References
T. Kawase, “Risk-Benefit Assessment in Clinical Research,” Chiba University Journal of Law, vol.
33, no. 1, pp. 163-202, 2018.
----, “A Typology of Risk and Risk Coping: Clinical Research and Global Justice,” Journal of Legal
Theory, vol. 37, pp. 51-69, 2019.
Kodama, Satoshi, Utility and Intuition: An Introduction to the History of Anglo-American EthicalThought, Keiso Shobo, 2010
Popper, Karl R. (1945). The Open Society and Its Enemies Vol I: The Spell of Plato, Routledge.
translated by Akio Uchida and Makoto Ogahara, Miraisha, 1980.

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