Issue link: https://maltatoday.uberflip.com/i/1443447
15 maltatoday | SUNDAY • 9 JANUARY 2022 OPINION SINCE the start of the pandem- ic, anyone wishing to enter Aus- tralia has had to contend with one of the strictest immigration and quarantine regimes in the world. While requirements have been loosened for vaccinated vi- sa-holders, tough rules remain in place for the unvaccinated. Naturally, Australian resi- dents and others around the world were surprised when un- vaccinated tennis star Novak Djokovic announced that he was travelling to Melbourne to defend his Australian Open ti- tle, having been exempted from quarantine requirements. The exemption granted to Djokovic looked to many like the rules were being bent for the benefit of the rich and pow- erful in a way that wouldn't have happened for an ordinary citizen. The virus hasn't giv- en him a free pass for being a high-profile tennis player – so why should immigration au- thorities? While at the time of writing, the outcome of Djokovic's vi- sa troubles was uncertain, the double standard of rules raises a much bigger question about the philosophy of law: can the ap- plication of a rule be so unfair that we have no valid reason to follow it? The issue of "one rule for them and another for the rest of us" raises its head frequent- ly. Throughout the pandemic in the UK, the rich and pow- erful have claimed – often un- believably – that their actions were permitted by rules that re- stricted the rest of us. Consider Dominic Cummings' claim that his 50-mile round trip from Durham to Barnard Castle was a "local journey", or Downing Street officials' assertions that their late night cheese and wine gatherings were not parties, but work meetings. The consequences of a system where one rule appears to ap- ply to a select few, and another to everyone else, were warned of by legal philosopher Gustav Radbruch. Given his service as German minister of justice during the Weimar Republic and later, as a respected legal academic, we would do well to draw from his views on how the law is made and upheld. Radbruch suggested that a rule that does not treat like cas- es alike could be so unjust that it undermines the stability of the entire legal system. If the wider population thinks that a person is exempted from a rule for no good reason, everyone else would (rightfully) question the point of the rule. They may ask why they should continue to follow it – if enough people do this, the reason for having the rule in the first place disappears completely. The real drop in public adher- ence to COVID guidelines fol- lowing Cummings' trip to Bar- nard Castle is a good example of exactly this. This phenomenon is not on- ly damaging for the rule in question, but for the system as a whole. If citizens lack con- fidence in an individual rule, they may be more sceptical of other rules and refuse to follow them too. Before we know it, we may reach a critical mass where there is so much uncertainty about which rules ought to be followed at all that society will become ungovernable. Radbruch concludes that a rule that doesn't treat like cases alike can't be a law at all. This is because a key requirement of a legal system is that it needs to be stable, which means that people need to know what the law is and when it applies. If a rule doesn't treat everyone equally, then it does the oppo- site and increases doubt and uncertainty about what the law even is. And if enough rules ex- ist that create uncertainty about what the law is and when it ap- plies, the system will collapse. A rule that undermines a legal system in this way can't really be law at all, and legal officials shouldn't create or uphold them. Send him home Radbruch would probably conclude that Djokovic's ex- emption to Australia's vacci- nation requirement was illegit- imate and should be rejected. Treating like cases alike re- quires that we ask only whether Djokovic is vaccinated – he is not, so the government would be right to withdraw his visa. Djokovic fans might claim that his recent COVID infection means his immunity is equiva- lent to vaccination and that this should be enough, but regard- less of these details, the percep- tion is clearly that Djokovic was treated differently from other visitors. Therefore, the validity of the rule is questionable. The fact that the Djokovic case has been so ambiguous means we can't fully understand what the law even is. The stability of our legal system depends on those who make the rules being transparent about those rules – and the reasons behind any ex- emptions. COVID restrictions are al- ready being questioned, and Djokovic's situation deteri- orates them further. Studies from almost a year ago show that people already began to break COVID rules when they saw more privileged people get- ting away with flouting them. It is likely that this disillusion- ment will only increase as peo- ple's patience wears thin. TheConversation.eu Joshua Jowitt is Lecturer in Law, Newcastle University Joshua Jowitt Novak Djokovic: the legal problem of having one rule for some, another for everyone else Novak Djokovic