A conversation with Stefan Huster, Professor for Public Law, Social Security and Health Law, and Philosophy of Law at the Ruhr-Universität Bochum, Chairman of the Evaluation Commission on the Infection Protection Law, and Fellow in 2010/2011

Daniel Schönpflug: You were a Fellow at the Wissenschaftskolleg in 2010/2011 and worked on the themes of justice and freedom in health care. In your yearbook report, you describe the Wissenschaftskolleg as “an extremely liberal institution. Of course, no one is forced or even pressured to live healthfully – it is merely made easy, from independence in work through free disposition of time to balanced nutrition (only the desserts from the outstanding kitchen come dangerously close to bodily injury). The wine at the weekly dinner has not yet fallen victim to any health terrorism, and even ashtrays can be found here and there. With this, the Wissenschaftskolleg – under admittedly very favorable conditions – has found a balance that society is still seeking: how can we promote or maintain our health without suffocating in a paternalistic and joyless ‘healthism’?” So to start off, the question: What do you think of the decision, taken upon request from the Fellows, to prohibit smoking in all the rooms of the Kolleg?

Stefan Huster: I remember being a little surprised back then that, at late hours at events, cigarette smoke wafted through the clubrooms. I can understand that at some point it was put to an end. I think, anyway, that in Germany smoking is discussed somewhat hypocritically. In the juridical debates, it is always maintained that the point isn’t defending the individual against himself or herself. Supposedly, the individual smoker can puff away to his heart’s content; the goal is always solely to protect the nonsmoker. But if you see what institutions like the German Cancer Research Center proclaims as a success, then it’s clear that in reality the point is reducing the number of smokers. We thus carry the principles of a free society around with us, but in actuality, we do want to change the behavior of individuals. Quite apart from the fact that it’s an illusion that deciding about smoking or not smoking is an entirely free and autonomous one. I say this as someone who smoked for a long time and quit two years ago. Considering the substantial dependency that cigarettes can engender, I think a certain paternalism is certainly worth discussing.

DS: The question just raised with a minor example is posed on a grand scale and with painful urgency in the current pandemic: Who is responsible for public health? The government and the state? The individual citizen? The doctors and hospitals? Society as a political community of solidarity?

SH: What’s astonishing is that, from the perspective of public health research, pandemics are actually an age-old problem. Humanity has had to deal with contagious diseases throughout history, and we thought that we had them under control. The threat from smallpox and malaria seemed a thing of the past or a problem of the Third World. Until the outbreak of Covid-19, we thought we should urgently attend to new groups of problems that were described with the term “new public health”. Interest was oriented toward the effects of life circumstances and social determinants on health – and also toward alternatives to state paternalism. But I remember that, a few years ago, a very good juridical dissertation appeared on the state of Germany’s Infection Protection Law; it concluded that Germany is clearly prepared to control outbreaks of measles in kindergartens, but in no way to control an epidemic or pandemic. This assessment turned out to be correct, unfortunately. We’ve seen since 2020 that the systems are poorly coordinated and that the legal foundations are not clear enough. Among the problems is, in particular, that the responsibilities for maintaining health in a pandemic situation are not clearly distributed. That was a contributing factor why, when the pandemic broke out, the parliaments metaphorically went into hiding and abandoned the field mostly to the executive branch. No one actively took away the parliaments’ decision-making authority; they voluntarily relinquished it because they didn’t want the responsibility. In normal times, that was no problem, because there was always enough time to repeatedly renegotiate and produce the aforementioned balance. But the unclear responsibility very rapidly became an extremely pressing problem when, starting in March 2020, the intensive care wards began to fill up.

DS: That leads to the question of how well Germany was legally prepared for such a crisis. The Basic Law, our constitutional document, has regulations regarding “states of emergency” that were retroactively patched in. But among the various scenarios that are regulated here, there is no mention of a plague that lasts for several years.

SH: That’s right. The “state of health emergency” is not regulated in the constitution. Because that’s the case, Germany’s parliament, the Bundestag, stitched together a kind of mini-state of emergency: the “epidemic situation of national consequence” in accordance with § 5 of the Infection Protection Law. That meant a very far-reaching competency transfer from the parliament to the executive – specifically, for example, to the Federal Ministry of Health, which could now enact special regulations sidestepping existing law. In practice, the Health Minister has kept far behind the legal possibilities these new competencies provide. And yet, § 5 is a clear break with our conventional ideas of the hierarchy of juridical norms. I interpret this step as a panic reaction. The famous “hour of the executive” tolled; everything had to move quickly, the possibility to “govern unopposed” had to be created as fast as possible. But, as already touched on, the problem was that, at the beginning of the pandemic, Germany stood there with an Infection Protection Law that was utterly unsuitable to respond to the pressing problems. The law doesn’t even mention distance rules, or test regimes, or school closures, and surely not large-scale lockdowns. And so authorities stood there normatively naked; and the fear was that it would take too long to wait until agreement on a change in the law was found.

DS: Consequently, as a citizen, one had the impression that the real power to decide and act lay in the hands of the governments of the Länder, the states, even though the Infection Protection Law actually allots them only the execution of measures decide elsewhere. Is this impression correct? And if it is, couldn’t the parliaments of the Länder play a bigger role, as counterweight to the state premiers?

SH: In part, this is explained simply by our federal structure. The normal case is for federal laws to be implemented by the executive branches of the Länder. The Länder parliaments don’t have a voice in this. But in the meantime, there are efforts in almost all the Länder to strengthen the role of their parliaments. This has taken on very diverse forms. In many Länder, for example, the information rights of the parliament in relation to the executive have been strengthened. In others, the Corona protection regulations have had the possibility of being vetoed attached to them, so that the parliaments can block specific regulations in advance or retroactively. In North Rhine-Westphalia, the parliament passes what it calls “pandemic guidelines” that are supposed to at least present a rough framework for how the executive is to act – but in the end, they are not binding. In the Bavarian Land parliament, similar things are being considered. So, we can see that the legislative branch is finding its voice again. Similarly, on the federal level, where the “epidemic situation of national consequence” ran out on November 25, 2021.

DS: What you are saying does not sound as if you wanted to strengthen the central power on the federal level. Like in France, where the President can pronounce from the Elysee Palace that the beaches in Brittany are off limits…

SH: Here we have to distinguish two things: First, we must note that, to this day, there are no unified standards for infection protection in Germany. But it should be possible to mandate that, when the rate of infection in a region reaches a certain point, certain measures should be taken. That was the case with what was called the “federal emergency brake”, but it has long since expired. Since then, there haven’t really been any unified federal guidelines on what measures should be taken under what circumstances. This seems to me to be a problem, because the Länder respond differently to similar situations. It reduces the acceptance of measures if, with the same rate of infection, shops in the Land of Saxony are open, but closed in Saxony-Anhalt. Second, it would be nonsense to demand that all Länder must institute the same measures, independently of their respective situations. Why should a shop owner in Schleswig-Holstein have to close, just because the incidence is high in Saxony? The alternative can’t be either everyone does what he or she wants, or else everyone does the same thing. What’s decisive for me is not a strong central power in Berlin, but unified standards on the national level that can be implemented differentially, in accordance with the context of the Land.

DS: I would like to talk about the probably most-discussed legal question associated with the pandemic: the limitation of freedoms. If I see it correctly, the constitution’s rules on states of emergency do not foresee a limitation of basic rights.

SH: That’s correct, but in the meantime, the jurisprudential literature definitely discusses whether a “mini-state of emergency” should be introduced to the constitution. I have a certain sympathy for this, because it would make it clear that for a defined and finite time period, different standards apply than otherwise. That might ameliorate the widespread fear that, in an “epidemic situation of national consequence”, limitations of basic rights might creep in, so to speak, that would not be repealed afterward, when the pandemic is over. But when one clearly says, “Now is a state of emergency,” then it is certain that and when it ends and when we return to the original rights.

DS: But under the premises of the “epidemic situation of national consequence”, various basic rights were limited. What juridical construction makes this possible at all?

SH: To start with, that basic rights can be limited by legislation is not specific to the pandemic. Many laws regulate the use of freedom – think of completely trivial things like speed limits for vehicles or hygiene rules at the workplace. But in the pandemic there are blanket, especially intense encroachments on freedom, many of which also trace back to decisions by an executive branch released from parliamentary control. Even if the constitutional court has assumed its role as final controlling instance, one sometimes had the impression that not much was left of some basic rights. Restricting intensely protected rights like freedom to practice one’s religion or to engage in political assembly is very serious. It would be good if we could determine – and not solely with a paragraph in the Infection Protection Law – that the country has shifted into a different condition for a clearly defined and limited time. This should be clearly distinguishable from the usual legislative routine. But Germany’s constitutional Basic Law does not provide this possibility, and that’s why the shifting standard of proportionality applies; that is, if the danger is great enough, then one can intervene deeply into the rights to freedom. The risk that people thereby accustom themselves to such far-reaching interventions in basic rights cannot be dismissed out of hand. When the massive lockdown regulations were resolved, there were indeed voices asking: If this is possible to defend against a pandemic, why not for climate protection? If politics really wants to govern without effective opposition, then that is apparently possible, too. We have to be very careful that we don’t get used to this idea.

DS: An in part furious public debate is being conducted about wearing masks. Do you see a danger to basic rights here?

SH: The requirement to wear masks in public space is one of the measures with a very low intensity of intervention. Of course, it’s burdensome; I think so, too. But it doesn’t hinder me from doing what I want to, and it doesn’t limit my freedom of movement. That’s on an entirely different level from, for example, limitations on going outdoors or forbidding contacts. That’s why the Länder have received the suggestion that, even after the suspension of the “epidemic situation of national consequence”, wearing masks is an instrument to protect against infection.

DS: But the situation is different with mandatory vaccination, isn’t it? Here it’s a question of physically intervening in the body.

SH: There is a traditional idea of the body’s boundary as a hard political and legal limit. On the one hand, that is persuasive, but on the other hand, we have to say that that has never been entirely true. When you are caught driving drunk, you have to allow your blood to be taken for testing. Or consider the ban on abortions, in which the idea “my body belongs to me” has always run into limits. And so one mustn’t make a shibboleth out of mandatory vaccination. But if I look at the situation and see that a larger portion of the population is unwilling to be vaccinated and I see that this refusal leads to an overburdened health system and that, for that reason, basic rights have to be limited again – up to and including school closures, under which children demonstrably suffer – and when I also see that the vaccines to be used have been studied more thoroughly than vaccines almost ever have been, with the result that they present almost no risk… Then I think mandatory vaccination is justified. We have to talk about precisely what mandatory vaccination means. I would plead for a strict “vaccination or recovery” rule for participation in societal life. With that, one avoids the actually self-suggesting regulatory measures that could be summed up as: You don’t have to get a vaccination, but if you then fall ill, don’t fool yourself that you’ll be the first to get a bed in an intensive care ward in the hospital. This consequence, triage in accordance with vaccination status, collides, of course, with the professional ethics of the physicians.

DS: That leads back to our earlier idea of the balance between state and individual responsibility and at the same time to an understanding of the interdependence of freedoms. If one defends one freedom, it’s possible one is limiting another. Here, too, it’s clearly a question of balances. Shouldn’t the existence of different concepts of freedom be taken into consideration: individual freedom against collective freedom, self-interest against solidarity?

SH: In recent months there have been discussions whether the vaccination refusers or the FDP operate with a truncated concept of freedom. Honestly, I don’t have much sympathy for this discussion. Even if the vaccination refuser were wrong about the matter itself, we can’t deny that he or she has a right to a free decision about his or her body, a right that would be limited by a mandatory vaccination. I would like to hold onto this. We have to clearly call a limitation on freedom exactly that – but we shouldn’t shy away from it, if it’s justified. In my opinion, it makes little sense to want to define every possible collective interest into the concept of freedom. Freedom is freedom, and it is not the same thing as security or the general welfare.

DS: Do you regard triage, which, with the emergence of omicron, could become reality also in Germany, as a question of basic rights? The constitutional court recently decided in this direction.

SH: This is really an accursed discussion in which the jurists have maneuvered themselves into a corner. Some say triage absolutely must be legally regulated. One can see it that way and plead for a constitutional basis for it. On the other hand, one can imagine – and this is also the position of Germany’s Ethics Council – that such a regulation is problematical in a state under the rule of law. After all, it leads directly into a situation in which the parliament defines divergent levels of worthiness to live. The only thing that would help against that would be a lottery process, or the principle “first come, first served”. But medical personnel find that unsatisfactory, and we know what burdens these people currently have to bear. Medical personnel justifiably want to see their investment bring a return, namely saved lives. So, it is understandable that it wants to distribute the resources effectively. Ultimately, I don’t think the Bundestag can arrive at a good decision based on coherent principles on the issue of the relationship between urgency and prospects of success. That’s why I think, in this extremely difficult question, that it would be better to trust emergency medicine, which has centuries of experience and has by and large proven itself trustworthy.

DS: I would like to conclude by asking you about your role as expert in this pandemic. First, it’s very satisfying that scientific knowledge currently plays such a great role in politics. Second, precisely that raises questions. You took part in many of the ad hoc recommendations of the German National Academy of Sciences Leopoldina. What does this advisory activity look like, concretely?

SH: There are working groups at the Leopoldina that have been meeting together regularly for years. But the ad hoc positions are intended to be very current. They generally come from individual Academy members who, on short notice, call together the selected colleagues for a – now digital – meeting. Staff members of the Leopoldina then put the results into a first written version and then finalize it in a second meeting or in the course of intensive e-mail correspondence. Of course, there is the question of legitimation – why precisely the Leopoldina, why precisely these persons – but I can live with that, because these statements are merely recommendations, after all.

DS: But in the meantime, there is a concert of experts – along with the Robert Koch Institute, there are also the Standing Committee on Vaccination, the German Ethics Council, the Leopoldina, publicly effective individual researchers, etc. – and the concert is not always harmonious. Do you regard that as a problem?

SH: The relationship between science and politics will be one of the big questions after the end of the pandemic. What expectation is placed on scientific advice to politics? The question is relevant far beyond the pandemic – merely consider climate protection. But I don’t think answering it is really so difficult. One need only underscore, at all times, the difference between advice and decision. Chancellor Merkel did a lot that was right in the pandemic, but presenting her decisions as “without alternative” was not adroit. Politicians must not create the impression that they act in a particular way because a scientist or science told them to. Something’s wrong there, there’s a category mistake, and people notice it, too. The decision begins, after all, with which scientists politicians decide to be advised by. Up to this point, medical scientists have dominated, which can be seen in many decisions, for instance on the sequence in which groups of people are vaccinated. Another problem is that political decisions are often needed before scientific clarity is even reached. In this field, a lot still needs to be cleared up.

DS: As Chairman of the just-founded Evaluation Commission for the Infection Protection Law as part of the Federal Ministry of Health, you are very directly concerned with the lessons to be learned from the pandemic. Along with the relationship between science and politics, what lessons do you see that need to be learned?

SH: Fundamentally, I think it’s a little snooty to say in retrospect that everything unfolded catastrophically and we should have known and done this or that. Psychology would speak here of “hindsight bias”. Nevertheless, the Expert Commission on the Infection Protection Law must submit a report by the middle of next year that evaluates how we dealt with the pandemic. At the present time, I can only report on my own observations. They include that we in Germany are in the second year of the pandemic but still don’t know which instruments are really effective. There was too little, too uncoordinated accompanying research on these issues. There is no office that coordinates large studies, much less social experiments. One could try out, for example, what happens when one closes the schools in one Land, leaves them open in another, and in a third has half of the pupils in presence and half in online instruction, then trading off. After a few weeks, we would know more. And a second point occurs to me: we have to make sure that we give more visibility to differing perspectives and states of being affected. The interests of children and schools, of students and universities have so far often been neglected. A virological tunnel vision dominates that has produced substantial collateral damage. For example, if you look at the federal government’s new expert council, you see a Landrat (district councilor), the head of a public health department, the Chair of the Ethics Council, and a psychologist concerned with resistance to vaccination, but otherwise only medical professionals. Not a single social scientist or jurist was appointed to this council. This does not bring the various effects of the pandemic into view: but the lockdown in a Grunewald villa is something very different from the lockdown in an apartment in a high-rise in the proletarian district, Märkisches Viertel. There will be a lot to work through.

Translated by Mitch Cohen