Forgetting about all the number games for a moment, here are a few thoughts from a philosophical and legal perspective. It's also an attempt to "enjoy the show" today, in the face of a staggering onslaught of propaganda and stupidity in the media here at the moment. I can't fight those idiots, so what else is there to do? Let's have some fun!
The whole idea that a human being has absolute worth and dignity has of course a long religious tradition, but in the modern world it goes back to the Western philosophical canon. Ethics, as thought of by the liberal thinkers but also in the continental tradition (Kant etc.), has its starting point in the individual. Each human being has free will, and therefore a potential that he or she can manifest in the world. The potential to understand, to act based on understanding, to manifest the good. He also can go wrong of course, but since he has free will, and therefore can change for the better, and it's not always easy to say what's wrong anyway, we ascribe to human beings a non-negotiable value. Because that's the whole point of existence: using our free will to develop our potential (or not).
We are subjects. Without free will, and the possibility to express it, we are "meat sacks" - pointless existences that can be violated at will because we don't have intrinsic value. We are just objects of political programs and other interests. This means that freedom is directly related to human dignity, which is the foundation of human rights and basically all rights granted to us in Western constitutions. Without these concepts, everything falls apart.
Let's take the German constitution as an example, but I'm sure you can make similar arguments with other constitutions. (You can find an english version
here.)
Because of the philosophical background I just gave, the first article in our constitution is not the "right to live" or something like that, but reads:
It's the first article, and it has the strongest wording of all: "untouchable". Not only that, legally, this article is
entirely without limitations! In the law, it trumps
everything, without exception. It is also unchangeable - not even by parliament with an unanimous vote. It is valid "forever" (article 79). This is a result of the Weimar Republic experience, but it also directly follows from the philosophical background.
Now let's look at article 2 GG:
Notice that section (1) emphasizes, again, freedom - as an expression of human dignity (article 1), congruent with the philosophical background. The whole article is under the banner of "personal freedoms". And only THEN, in section 2, comes the "right to live", which by the way is primarily intended as a
right against the state, and also an obligation of the state to protect this right against "third parties" (i.e. persecution of criminals), according to legal commentary.
But as if the authors knew that the "right to live" can be abused for all kinds of things (see Corona nonsense), they AGAIN, in the same breath, emphasize freedom: "Freedom of the person shall be inviolable". Wise men, these, I'd say. Of course, there can and must be legal limitations here, but I think the spirit of the law is crystal-clear.
All of this means, of course, that in no frigging way can the "right to live" be considered absolute. "Every life counts!" is a ridiculous argument. No:
every human's dignity counts. An "administrated meat sack" has no dignity and therefore no rights, not even the right to live, so without dignity - nothing.
That is to say, preventing death is NOT and can never be the most important objective of the state. Dignity and freedom, which are inseparable, are dangerous and can kill people - in fact
do kill people every day. For example in an act of self-sacrifice, stupidity, or carelessness, or just as a result of voluntarily exposing yourself to danger, which of course you do every day. But legally, you can NEVER have the "right to live" trump human dignity.
This is the reason why torture is strictly illegal. If you torture people to "save lives", you destroy the very reason why people should be saved in the first place! No point saving anybody if you don't assume every human to have human dignity. You violate human dignity - you give up all justifications to act in the name of good. That's what our philosophical tradition tells us, and that's what's in the law.
That's also why we don't strap old people to their beds "for their own safety", but on the contrary encourage them to be as active as possible, even if that greatly enhances their chance of dying, such as from falling, catching the flu or whatever.
Now, what is human dignity legally? The German Constitutional Court has come up with the "object formula" in a verdict from 2006 concerning the idea to shoot down passenger planes if they are hijacked by terrorists:
Again, this "subject vs. object" distinction goes right back to the philosophical tradition, even to Plato I believe. Now, in the case of the Corona measures, even though the state didn't directly advocate killing people to save people, what are we to make of reducing all people, including healthy ones, to mere "virus spreaders"? What are we to make of locking elderly people away in their care homes? What about forbidding attending funerals?
Isn't all that turning people into objects and depriving them of their dignity in the name of some policy goal?
I'm not a lawyer and don't know how public law and all that works precisely. But I can't see how the constitutional court could come to any other conclusion than ruling most of these "lockdown" measures unconstitutional. In a sane world, they would give politics hell. But we don't live in a sane world anymore...
I think their tactic will be a combination of:
- trying to avoid any court case that directly deals with the justification of the measures, i.e. the real danger of the disease. They would be ripped to shreds if it came to that.
- declaring that article 1 (human dignity) is not applicable here and/or is not violated, focussing on the "lesser" freedom clauses that are subject to limitations, i.e. limited by the law for disease control in this case
- coming up with some "balanced" ruling that will say "okay, this or that aspect of the lockdown was unconstitutional", and the politicians going "oh, maybe we went a little bit too far here and there", before announcing the next nonsense.
- using legal tricks to make the court cases about very specific, limited aspects of the measures rather than the whole thing or the very legality of the procedures that "allowed" the state to "temporarily" suspend half of the articles of our constitution in the first place.
- an onslaught of propaganda around the court cases that will threaten the judges
It will be interesting though to observe how it plays out once the various lawsuits get rolling. The constitutional court in Germany has shown some guts in the past, and the Nazi experience has primed everyone, including the judges, to look very carefully at such questions, unlike in other countries. Perhaps there are a few heroes among the judges in lesser courts as well, and we might get to see the whole legal car accident in some detail. Wait and see and enjoy the show I guess!