What COVID-19 has taught Kansans about the power of legal rules and normative rules

Deborah Birx, the White House coronavirus response coordinator, at an August 2020 meeting at University of Kansas Medical Center in Kansas City, Kansas. Birx said state and local public health officials must push harder on wearing of masks, social distancing and limiting mass gatherings to stem a wave of COVID-19 infection moving into the Midwest. (Tim Carpenter/Kansas Reflector)

The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Mike Hoeflich is a professor at the University of Kansas School of Law.

Legal philosophers draw a distinction between legal rules and normative rules. A legal rule is a rule adopted through legitimate governmental processes that carries a sanction for disobedience. People obey legal rules because they fear punishment. A normative rule is a rule people obey because they believe that the rule makes sense even though it carries no punishment for disobedience.

For example, a law that requires people to pay income tax is one most people obey because they fear punishment if they do not. The legal philosopher H.L.A. Hart cited the unspoken rule in 1950s England that men would take off their hats when they entered a church as a normative rule that most men obeyed even though there was no punishment for not doing so.

Rules can be both normative and legal. The law against murder is both. People do not murder other people only because they fear punishment; people don’t kill other people because they believe that murder is wrong.

The distinction between normative and legal rules is relevant today as we struggle with COVID-19, a divided society and widespread mistrust of government.

In the past six months we have seen a national controversy play out over wearing masks even though health experts have said repeatedly that mask wearing helps slow the spread of the virus. But attempts to mandate mask wearing have met with protests and converted what should have been important public health advice into a hot political issue. Thousands of Americans, including many Kansans, refused and continue to refuse to wear masks because they reject the scientific evidence that masks help prevent the spread of COVID-19 and because they believe mask mandates violate their constitutional rights. The result in many areas has been an increase in infections and deaths.

Legal mandates requiring people to wear masks have worked only in areas where people accept the science or where people fear punishment for not wearing a mask. We simply don’t have enough police to enforce mask mandates, so they do not frighten people into obedience. Thus, mask mandates have failed in much of America.

To get all Americans to wear masks, it is necessary to find a way to make mask wearing normative. Rather than argue about the legality of mask mandates, we need to find ways to bridge political divides and convince all Americans that wearing masks is the right thing to do. It is probably already too late for this.

Although it may be too late to make mask wearing normative in Kansas, it is not too late to learn a lesson from the “mask wars” and apply it to vaccination.

Too many Americans say that they refuse to be vaccinated against COVID. To achieve a high enough percentage of vaccinated Americans to reach “herd immunity” and end the pandemic, government officials as well as private citizens must find ways to make vaccination normative, i.e. convince people that vaccination is the morally right thing to do.

Kansas Gov. Laura Kelly’s administration and the incoming Joe Biden administration in Washington have so far said they will not impose laws to make vaccination mandatory but instead will work to educate the public to understand that vaccination is a civic and moral duty. In recent days, several prominent Republicans, such as U.S. Sen. Pat Roberts, have done exactly that. But in a climate as politicized as the one we’re in, we need community leaders such as teachers, ministers, athletes and coaches to speak out on this issue.

If we are to achieve the necessary level of vaccination in this state and country, we need to convince the general public that vaccination is a moral obligation — not a legal obligation. Imagine if the football and basketball coaches at all Kansas universities and junior colleges publicly declared their support for vaccination and agreed to be vaccinated on television. Imagine if athletes like the great Patrick Mahomes offered to do the same.

I believe that such a strategy of persuasion rather than imposition of a legal mandate will be the most effective. I believe that the vast majority of Kansans — and Americans — are good people who want to do what is right. Now is the time to convince them that vaccination, although not legally required, is the right thing to do.

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