Mask Mandates and the Uses of the Law
M. Christian Green
This article is part of our “Law and Religion Under Pressure: A One-Year Pandemic Retrospective” series.
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Recently, in my part of the world, as in many places across the United States, debates have raged over the enforcement of mask mandates as a measure against COVID-19. My representative, Congressman Clay Higgins, described masks early on as “bacteria traps.” This assertion was apparently based on his former career as a police officer, in which he had observed doctors and nurses in hospitals not wearing masks. “I have a different medical opinion,” Higgins said. His rationales, far from being confined to the merely medical, have also extended to the theological, as when he observed, “It’s part of the dehumanization of the children of God. You’re participating in it by wearing a mask.” This interesting reference to imago Dei theology echoed that made by at least one other legislator, who maintained, “We are all created in the image and likeness of God. That image is seen the most by our face. I will not wear a mask. That’s the image of God right there, and I want to see it in my brothers and sisters.”
Higgins has been roundly critiqued for his political and theological opinions on masks, but his view of government also has its limitations, based in a particular notion of the limitations of the law itself and the particular efficacy of law in the case of mask mandates. For example, in response to gun control measures proposed recently by the Biden administration, the congressman said, “No executive order or legislative regulation is going to stop murderous criminals from carrying out acts of evil. Criminals do not care about the writ of law.” In another theologically and biblically infused moment, the congressman, invoking a “higher authority than the law of man,” also characterized gun control measures as a “veil to conceal the violence of man born since Adam.” As the congressman noted, “First-born son of Adam killed his brother in a violent rage. I’m rather certain he did not use a firearm.” If the law cannot enforce compliance, then it is pointless to even try — this seemed to be this lawmaker’s remarkably pessimistic view.
Such solonic pronouncements about the limits of law do not really address the problem of what to do about those who insist on gun rights when the majority of Americans do not own guns. Nor do they address noncompliance with another important matter of state regulation, namely, the required wearing of face-covering masks under COVID mask mandates. In my current city of residence, a mask mandate was recently rejected by the local government, to the chagrin of many citizens. The mayor-president of our consolidated city-parish government (the Louisiana term for county) had earlier decided not to enforce the statewide mask mandate issued by the governor. Members of the city council, including at least one who had previously supported a local mask mandate, specifically expressed doubts about the efficacy and enforceability of the mandates.
Expressions of doubt about the enforceability and authority of law can be difficult to hear from lawmakers and elected officials. After all, if they can’t make and enforce the law, then who can? Such concerns are part of a perennial debate about the enforceability of law and what it means to have laws that are not or cannot be enforced. Can an unenforced law remain on the books if it is only honored in the breach rather than in the observance? Is a law valid and authoritative if it is incapable of enforcement? Do laws seen to be unenforceable unacceptably weaken the power and authority of law itself? And does it matter that criminals and evildoers do not obey the law? Such questions lead to larger questions of the purpose and use of law: For whom does the law exist? What purpose and use does the law serve?
In fact, the question of the uses of law in Christian theology has a long pedigree upon which law and religion scholars have drawn to understand the use, effect, and authority of law. Legal scholars John Witte and Thomas Arthur provide one of the most cogent analyses of the topic in their article, “The Three Uses of the Law: A Protestant Source of the Purpose of Criminal Punishment?” In the Christian tradition, the three uses of law include the civil, theological, and pedagogical (educational) uses of the law. Protestant theologians, drawing on earlier Christian concepts of natural law and conscience, discussed the uses of law primarily in relation to the moral law, but understandings of the uses of law also have important implications for how we understand the force of secular law.
The civil use of law, likely the one most obvious to non-theologians, has the purpose of restraining people from bad or sinful actions. These may include actions, such as the refusal to wear masks in a global pandemic, that are harmful to the individual, and especially to the common good. As Witte and Arthur describe it, in the minds of Reformation theologians, the civil use of the law imposed a “constrained or enforced righteousness” and “an external and public morality.” Adherence to the law in its civil use would afford, as Witte and Arthur maintain, a “modicum of peace and stability in this sin-ridden world.”
The second use of the law, the theological or spiritual use, is to “condemn sinful persons for their violations of the law.” Witte and Arthur observe that this condemnation “ensures both the integrity of the law and the humility of the sinner” in a process by which “the violation of the law is avenged, and the integrity, the balance of the law is restored by the condemnation of those who violate it.” As a result, “the violator of the law is appropriately chastened.” As reformer Martin Luther maintained, “the law serves as a mirror ‘to reveal to man his sin, blindness, misery, wickedness, ignorance, hate, [and] contempt of God.’” In a similar vein and also taking up the trope of the mirror, reformer John Calvin put it, “In short, it is as if someone’s face were all marked up so that everybody who saw him might laugh at him. Yet he himself is completely unaware of his condition. But if they bring him a mirror, he will be ashamed of himself, and will hide and wash himself when he sees how filthy he is.”
Among the three uses of the law, it is the third use, the pedagogical use, that is perhaps the most salient for mask mandate debates. As Witte and Arthur describe the function of the pedagogical use of the law in the lives of Christian believers, “The law teaches them not only the ‘public’ or ‘external’ morality that is common to all persons, but also the ‘private’ or ‘internal’ morality that is becoming only of Christians. As a teacher, the law not only coerces them against violence and violation, but also cultivates in them charity and love.” Like any effective pedagogy, the pedagogy of the law leads to internalization of the subject matter — in this case, a moral subject matter. The pedagogy of the law may even accomplish a certain metanoia in the individual and even in society as a whole.
This distinctly Christian formulation and understanding of the pedagogical use of the law has analogues in other religious and philosophical traditions — most obviously the Golden Rule in its diverse but apparently universal formulations — that point to a similar understanding of the need for internalization and internal cultivation of moral habits that lead to compliance with laws. It was observed by politicians and public health experts alike early in the pandemic that the person who wears a mask protects their neighbor from viral exhalations, but the subsequent discovery that masks protect the wearer, too, cinched the virtuous circle. Mask wearing became not only a powerful means of viral mitigation in service of public health, but one that combined internally direct impulses of self-care with the externally directed impulses of altruism and solidarity.
Further dimensions of the pedagogical use of law are also worth noting, particularly with respect to the enforceability and authority of law that has been such a concern and stumbling block in relation to mask mandates. First of all, the enactment of a mass mandate has expressive value that is independent of, and in some ways transcends, enforcement. The very fact that a mask mandate has been issued expresses the view of the community that public health is worth preserving and that we have a duty to care for one another. This expressive aspect actually reinforces the civil use of the law when it comes to mask wearing. For example, many business leaders in the private sector, wary of turning away customers and commerce, have called upon the political leaders in the public sector to enforce a mask mandate. The failure of public officials to do their job of making and enforcing mask mandates has been seen as an abdication of their responsibility for civil order and a failure to express the public will.
Secondly, the issuance of a mask mandate potentially has a restorative function in the sense that, certainly before the advent of vaccines and now as an augmentation of them, masks are a crucial tool in achieving the return to normal life and even a reimagining and reordering of what is normal for an advanced society such as the United States. Until we reach the target level of vaccination to achieve the holy grail of herd immunity, masking and social distancing remain crucial ways for us to protect ourselves and others. The separation that the pandemic has imposed has been among the worst aspects of the COVID-19 for many. There is a keenly felt longing for the restoration of our normal lives and, insofar as it is possible, a restoration of what was lost. The demonstrated efficacy of masks has the capacity to reunite us in a post-pandemic world, even as the ongoing politicization of masks risks tearing us further apart.
Finally, the pedagogical use of the law is aspirational, in a way that defies a narrow emphasis on enforcement as the sole criterion of success. Affirmation of the aspirational dimension of law is, after all, a stock concept in the field of human rights law, and it is to be hoped that the opportunity to survive the COVID pandemic is both a human right and will be a human reality for many. Mask mandates aim to guide us through the very dark tunnel in which we currently find ourselves, but in a way that also forces us to grapple with uncertainties that are at the heart of science, an area of human knowledge and endeavor that too many today distrust and condemn. Disturbingly, for some there is no linear path through the pandemic, but rather undulating waves of disease and discovery. Even so, the mask mandate, as a form of law, still presses forward into the unknown, burdened with the limits of what is known and unknown, but with the ultimate aim of a renewed and rehabilitated world. In an aspirational context, what is most problematic is not that the law cannot be enforced in such a way as to restrain and reform each and every one of its citizens, but rather that some of our legislators seem not to aspire or attempt to do so at all. In that sense, what is fatal about the law is not the lack of authority and enforcement, but the lack of aspiration, imagination, and a pedagogy of progress. Doing nothing requires no constraints or mirrors; doing nothing is easy to enforce. It requires nothing of our legislators — and ultimately nothing from us.
Just as I was preparing to write the end of this essay, the governor of Louisiana lifted the statewide mask mandate. In a brief run to a grocery store, I steeled myself and double-masked up for an imagined onslaught of jubilant, unmasked faces. Instead, the employees and customers were masked nearly to a person. The force of law, especially when the law is unenforced, may not have achieved full compliance with the mask mandate when it was in effect. The civil use of the law to coerce and the theological use of the law to condemn are now off the table. But the pedagogical force of the law persists in the masked faces of the masses — a masked imago Dei ethic of care and concern for the common good. In the long run, the pedagogical use of the law may be the most powerful and long-lasting. ♦
M. Christian Green is a senior editor and senior researcher at the Center for the Study of Law and Religion. Her areas of scholarly expertise are law, religion, human rights, and global ethics.
Green, M. Christian. “Mask Mandates and the Uses of the Law.” Canopy Forum, May 10, 2021. https://canopyforum.org/2021/05/10/mask-mandates-and-the-uses-of-the-law/