Paternalism, Fundamental Rights and Happiness during the Pandemic

At the heydays of the pandemic, many citizens claimed their right to physical integrity: that the state should protect them from the risk of infection, through a general curtailment of mobility and liberty rights. Others, in the face of these restrictions on accustomed liberties, have insisted on precisely these fundamental rights. Many of us heard heated exchanges, for example, between proponents and opponents of mandatory mask wearing during the pandemic. Anecdotally, even reasonable people got into veritable disputes about these issues, and friendships might have even broken up over them.

The ‘pandemic’ state of emergency has thus made it vividly clear even to non-lawyers: the right to physical integrity permits the curtailment of other people’s rights to freedom. But the reverse is also true: the right to personal, political and economic freedom can justify restrictions on the right to physical integrity of others. Fundamental rights do not apply absolutely or without limits. Where they compete with each other, they restrict each other. In such cases, it becomes a matter for the courts to weigh them up. In the case of the pandemic, this means: how far may one restrict liberties for the purpose of protecting against infection, and how much risk of infection is reasonable for the preservation of the liberties of others?

A basic prerequisite for weighing is that the decision-maker knows what the various fundamental rights are worth to the different people affected. In this context, our paper ‘Paternalism Attitudes and the Happiness Value of Fundamental Freedoms’ provides a measurement of the value of personal freedom. The work measures the loss of life satisfaction during the first peak of the pandemic in 2020, when personal freedoms such as freedom of movement were massively curtailed in Germany and many other countries. The paper offers results on an attempt to decompose the overall loss of life satisfaction in the course of the pandemic into some of its components. The results indicate that the loss of personal freedom has considerable weight. Its impact on life satisfaction is in the order of magnitude compared to the impact of job loss. Certainly, this is not sufficient for conclusively resolving a legal trade-off between the fundamental rights that come into conflict with each other in the pandemic. But at least the analysis shows that granting personal freedom rights is not just an abstract or instrumental value but is valued very explicitly by many individuals.

However, reactions among the more than 4000 respondents of our survey differ a lot. A key distinction is the attitude toward state paternalism. In the context of our paper, ‘paternalistic’ regulations and prohibitions are defined as interventions with which the state wants to protect individuals from potentially self-harming behaviour. Our paper develops an index to measure individual attitudes toward such paternalism preferences and examines the heterogeneity of the population with respect to this preference. A key finding is: individuals who have a rather negative attitude toward paternalistic regulations and prohibitions attribute a larger loss of life satisfaction to restrictions of their personal freedom than individuals who have a rather positive attitude toward these interventions.

Kai A. Konrad is a professor of economics and Director at the Max Planck Institute for Tax Law and Public Finance.

Sven A. Simon is a Senior Research Fellow at the Max Planck Institute for Tax Law and Public Finance.