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ENGAGE, EXPLAIN, ENCOURAGE, ENFORCE: THERAPEUTIC JURISPRUDENCE AND THE CORONAVIRUS LOCKDOWN

John E Stannard ¨

The basic question posed by this paper is a simple one: what can the principles of therapeutic jurisprudence tell us about the public response to the Covid19 restrictions? And given the difficulty in enforcing these restrictions, how can they help us to encourage their observance?

On Monday 23^rd March 2020 the Prime Minister, Boris Johnson, addressed the country. [1] He spoke of the coronavirus pandemic [2] 'the biggest threat that this country has faced for decades' and of the steps being taken to fight it. He pointed out that without a huge national effort no health service would be able to cope with the numbers needing treatment, and that there would be many deaths as a result. It was therefore essential to reduce the number of those seeking hospital treatment at any one time, and this could only be done by asking everybody to stay at home. Rules would therefore have to be introduced to ensure that people did not leave their home except for limited purposes, and to this end most shops, businesses and other premises including libraries, playgrounds and places of worship would have to close until further notice. No Prime Minister wanted to enact measures of this sort, but there were no easy options.

The Prime Minister was as good as his word. Three days later, on Friday 26^th March, the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 came into force, [3] using powers conferred by section 45R of the Public Health (Control of Disease) Act 1984. Regulations 4 and 5 ordered the closure of a wide range of commercial and other premises, and regulation 6(1) prohibited any person from leaving their residence without reasonable excuse. [4] Regulation 7 imposed restrictions on public gatherings of more than two people, and regulations 8 and 9 provided mechanisms for enforcement, including criminal penalties and the use of force by the police.

One can see why the Prime Minister expressed his reluctance at having to impose provisions of this sort. The UK had not known such extreme measures, at any rate during peacetime. One academic commentator dubbed them as 'very draconian'; [5] another described them as 'the most extremely restrictive measures in modern history,' and expressed the fear that they might 'permanently damage the health of UK democracy and the rule of law'. [6] Press comments were in a similar vein, with the Daily Mail describing the measures as 'astonishing' and 'unprecedented', the Sun as 'house arrest', and the Daily Telegraph as 'the end of freedom'. [7]

One particular issue to the fore in public debate was as to how the lockdown measures could be effectively enforced. Doubts were expressed as to the willingness of the public to tolerate an extended period of compulsory confinement, [8] and it was said that the police had neither the resources nor the powers needed to cover this. [9] Police constables on the ground were unaccustomed to the use of powers of this nature, and in the early weeks there were many complaints regarding oppressive behaviour, including the mounting of road blocks, [10] the use of drones, [11] the use of excessive and unnecessary force, [12] and even threats to search shopping baskets and trolleys. [13] In this connection Lord Sumption accused some members of the police of behaving like 'glorified school prefects' adding that 'this is what a police state is like'. [14] Concern was also expressed at the 'hotlines' set up by some forces to facilitate members of the public in reporting breaches of the rules. [15] All of this led to warnings by various senior police personnel, including the Metropolitan Police Commissioner, the Chairman of the National Police Chiefs' Council (NPCC) and the Assistant Commissioner for Terrorism, urging members of the police not to indulge in overzealous tactics, and reminding them that persuasion and education should be the primary goal rather than strict enforcement. [16]

Indeed, the police had no other option at the end of the day. As the Chairman of the Police Federation said, it would simply not have been realistic to expect the police to enforce all of the lockdown rules. [17] Similar sentiments were expressed in a newspaper article by Bobby Friedman on 24^th March, who pointed out that if enough people wanted to defy the lockdown, it simply would not work, since there could never be enough police to enforce the measures. [18] Laws were adhered to as much by consent as by coercion. [19] It was therefore essential to apply common sense and discretion, [20] for in the words of Kirsty Brimelow QC, fairness was the key to legitimacy. [21]

All of this was reflected in a new set of guidelines issued by the NPPC and the College of Policing, which called for a four stage approach, namely Engage, Explain, Encourage and Enforce. [22] The aim of this paper is to examine these guidelines briefly from a number of theoretical perspectives before going on to see what therapeutic jurisprudence has to add to the mix. The key question to be examined in this context is not so much why the lockdown rules have been flouted on a number of occasions, but rather why they have been so widely observed. This may help us in future situations involving the imposition of rules that are socially necessary but difficult to enforce. Indeed, it will be argued that this four stage approach is of relevance not in the context of policing the coronavirus lockdown, but in the wider sphere as well.

A. THE GUIDELINES

Since the guidelines themselves are quite brief, they can more of less be paraphrased as they stand. [23] At the outset they are declared to be based on evidence that people are more likely to comply after a police encounter if they feel they have been treated fairly, have received an explanation, and have been given the opportunity to give their view. This is declared to fit with the idea of procedural justice [24] to support police legitimacy, which has been quite well tested and fits with the policing by consent model, [25] being founded on building public cooperation. Under the guidelines, policing would adopt a four-phase approach.

In the first phase, engage, officers speak to people and try to establish their awareness and understanding of the situation. They may ask people about their circumstances if they are out in public. In doing so, they should give people the opportunity to express their views. They should also listen and take people's responses into account.

In the second phase, explain, officers try to educate people about any personal risks they are taking, to explain the social distancing regulations and to highlight the responsibilities we all share. In doing so, they should treat people with dignity and respect. They should also highlight their trustworthy motives by explaining wider social factors, such as the risks to public health and the NHS by not sticking to social distancing.

In the third phase, encourage, officers may need to guide individuals, suggesting they return home. Officers can also encourage people to act reasonably, emphasising that social distancing and keeping to the lockdown saves lives. In doing so, they should demonstrate consistency in their approach and be willing to explain why they are requesting a certain course of action.

If on the other hand an officer has been explicit in their request for someone to take action, has explained the risk and encouraged people to be reasonable to save lives and they have refused, then it may become necessary to move to the fourth phase, enforce. In this phase officers may, as a last resort, remove a person to the place where they live, using reasonable force only if it is a necessary and proportionate means of ensuring compliance. They may also issue fines for breach of the Regulations.

B. THEORETICAL PERSPECTIVES

Simple as these guidelines may be, they raise some very important issues in the social, legal and political sphere. We shall now examine them from a number of different theoretical standpoints before turning to the key issue of therapeutic jurisprudence.

(1) Legitimacy

According to Cavadino, Dignan and Mair legitimacy is used by sociologists to denote 'power which is perceived as morally justified'. [26] Though this is certainly accurate as far as it goes, it hardly does justice to a concept that has been said to figure at the very heart of our concern with the nature and value of modern society, [27] and has spawned an enormous amount of literature not only in the field of law but also in other areas including politics, sociology and political science. [28] The concept features in the writings of numerous philosophers, from Grotius, Hobbes and Pufendorf to Locke, Montesquieu and Rousseau, but is supremely associated with Max Weber. [29] Its essential notions include that of legitimacy as 'a quality of the title to rulership, and the idea of consent as constitutive of legitimate power'. [30]

Zelditch points out that though the basic meaning of legitimacy is simply 'in accordance with a rule', something can be said to be legitimate if it is 'in accord with the norms, values, beliefs, practices and procedures accepted by a group'. [31] In the same way Tyler defines legitimacy in terms of 'a psychological property of an authority, institution or social arrangement that leads those connected to it to believe that it is appropriate, proper and just'. [32] It has been said that the term can be used in two senses, one being 'political support based on the authority and power of public officials, public policy and the political structure', and the other being 'the rightful exercise of authority, force and power by an individual or group, particularly an institution that commands and demands obedience'. [33] It can be seen as akin to trust; the more an authority can build up legitimacy, the more likely it is to gain public acceptance of its policies. [34]

Legitimacy is about power, but not all power is legitimate. [35] Rather, it is what makes power justified. One concept used in this connection is that of authority. In the words of one dictionary: 'Authority is often defined as legitimate power, and contrasted to pure power. In the case of legitimate authority, compliance is voluntary and based on a belief in the right of the authority to demand compliance.' [36] Or, as the Stanford Encyclopedia of Philosophy puts it, 'Legitimate authority' differs from merely effective or de facto authority in that it actually holds the right to rule and creates political obligations'. [37] Thus according to French and Raven, legitimacy is induced by normative feelings such as 'should', 'ought' or 'has a right to'. [38] Power is power, but legitimacy connotes rightful power, and what makes it right is the element of voluntary consent to its exercise. [39]

Given the complexity of the issues involved in legitimacy, it has been argued that it is not possible to give any precise operational meaning to the concept, and even that it is ultimately too vague to be of any real use. [40] However, a certain degree of clarity can be obtained by realising that legitimacy is a multi-dimensional concept, and that many of these dimensions interact and overlap. It is therefore worth exploring some of these dimensions, and seeing how these relate to our main question, namely the public's willing response to the coronavirus lockdown.

First of all, legitimacy can be both descriptive and normative. [41] A descriptive account simply examines people' beliefs as they are, without recourse to normative criteria, whereas a normative account is said to refer to some benchmark of acceptability or justification of political power or authority. [42] As will be seen, our analysis will be largely descriptive; we are simply asking why a good many people felt as they did with regard to the coronavirus regulations and their enforcement, though the fact that they did may suggest that they had good reason to do so.

Secondly, according to Weatherford, it can operate at both the 'macro' and the 'micro' level, the former referring to formal systems and procedures and the latter to citizens' attitudes and actions in particular cases. [43] Obviously there is no bright line between these levels; in so far as we are concerned with the way the regulations were enforced, we are at the 'micro' level, but the legitimacy of the regulations themselves is more of a 'macro' issue, though of course we are concerned not with the systems and procedures themselves but with what they produced.

Next, it can be formal or practical. There has been a tendency at times to see legitimacy merely in terms of formal legal criteria. Thus for instance it has been said that seat belt laws are legitimate because the police issue citations that are upheld by the courts, based on laws passed by the legislature. [44] Now, though this might be of interest from the angle of classical positivist jurisprudence, [45] it does not help us in the present context. After all, our question is not whether the coronavirus restrictions are legally binding, but why they have been so widely obeyed. This is a question of practical legitimacy.

Finally, it can relate both to the laws themselves and to the authorities which impose and enforce them. The first of these is often referred to as 'norm' legitimacy, [46] and can relate not only to particular laws and rules but to the substance of doctrinal law generally, indeed, it has been said that what counts as law, or as sources of law, is a question shot through with considerations of legitimacy. [47] The other aspect has been referred to as 'power' legitimacy, and is more concerned with institutions, [48] including not only communities such as nation states, but also the regimes that govern those states and the authorities which function within them. [49] From our own perspective, it is the legitimacy of the lockdown regulations themselves that is our main focus, but clearly this cannot be divorced from the legitimacy of the institutions that enacted and enforced them. In particular, as we shall see later, [50] it has been argued that the public's early trust in the authorities was later undermined to some extent by the contrast between attitude of the police shown in some cases to the regulations (which was perceived as over-zealous) and that of some politicians (which was perceived as anything but). In this respect, therefore, our enquiry straddles both sides of the divide. But how can such legitimacy be promoted? This brings us on to the second of our theoretical perspectives, that of psychological jurisprudence.

(2) Psychological Jurisprudence

The focus of psychological jurisprudence, as its name suggests, is on the use of psychology in the legal realm. Given that, as has been said, the 'stuff' of both law and psychology is human interaction, [51] one would have expected a fruitful cross-fertilisation between the two disciplines, but this has by no means necessarily been the case; indeed, though the importance of psychology to law was recognised as long ago as 1930, [52] it was not until fifty years later that efforts were made to explore these issues in a systematic manner. Writing in 1980, Craig Haney set out to explore the extent to which the insights of psychology could be used to improve law and to enhance the quality of its justice. [53] In his study he argued that there were no less than three dimensions to the topic. [54] The first, which he called 'psychology in the law' [55] was the best established, and related to the use of psychological expertise by the courts and other legal agencies when confronted with issues such as mental disorder. The second, psychology and the law, [56] took a more critical stance, and involved not only the use of psychological data to examine behavioural and empirical assumptions, but also the recognition of legal settings, procedures and decision-making processes as psychological phenomena. Finally there was the psychology of the law, [57] the concern of which was to explore the behavioural limits of law and to develop strategies for legal change. So how does this relate to the problem of legitimacy?

A good starting point here is with Tom Tyler, professor of psychology and law at Yale University, who has devoted most of his career in investigating why people obey the law. Writing with John M Darley in 1999, [58] he argued that psychologists could make an important contribution to the law by articulating the possibility of a law-abiding society, and by showing how such a society could be created and maintained. Such a contribution would involve the application of a psychological jurisprudence model, [59] including the application of psychological models of social values to conceptions of how to effectively maintain the rule of law. How then could this be done? This led to the question as to what motivated people to comply with the law. The traditional answer to this was to say that such compliance was motivated by deterrence, that is to say by the fear of being caught and punished. However, the authors argued that this was not the key to a law-abiding society; rather, such a society was one in which people were motivated to comply by a desire to act in socially appropriate ways. Such a society, they claimed, was essentially self-regulatory, since the responsibility to obey the law was voluntarily taken on by its members of their own free will. [60]

In the light of all this, the authors proceeded to an analysis of human motivation drawing on the relevant social psychological literature. In doing so they posited two basic models. [61] The first of these was deterrence, as reflected in the traditional 'social control' model of law-related behaviour. However, though this might have an effect in marginal cases, research findings seemed to demonstrate at best a weak link to risks associated with law-breaking behaviour. All of this might well go to explain the limited success of social control strategies based on deterrence. [62]

A more promising model by far, they argued, was the 'psychological jurisprudence' model, one based on a set of internal values that shaped people's feelings about what was ethical and appropriate behaviour. [63] Such values appeared to be motivated by two factors, one being the belief that the relevant conduct was morally right, and the other the belief that it conformed to the directives of a legitimate authority. [64] What made the latter particularly significant in the present context was that it was based not on agreement with the decision of the authority in question, but rather on the belief that it was fairly arrived at. [65] In many cases these two factors, morality and legitimacy, would point in the same direction. Where they did not, the law would be more difficult to enforce, [66] but this problem of dissonance could be ameliorated in various ways, either by amending the law so as to enhance the convergence between legitimacy and popular morality, [67] or by explaining the law to the public so as to show that the dissonance was not as great as it might appear. [68]

Since then these insights have been applied in a wide variety of areas, including not only policing, [69] crime [70] and the criminal justice system [71] , but also such diverse topics as copyright law, [72] business management, [73] unauthorised migration, [74] the practice of restorative justice [75] and the restriction of searches and seizures under the Fourth Amendment. [76] Indeed, there would seem to be few if any aspects of social and political life in which they would not seem to have at least some relevance. [77] So what do they have to say to us in the present context, that is to say, the enforcement of the coronavirus lockdown?

The answer, in a nutshell, would appear to be this: trying to make people obey the law (whether by physical force or by the use of deterrent sanctions) is very hard work and not particularly effective to boot. That corresponds to the discredited 'social control' model. Rather, more attention should be paid to the 'psychological jurisprudence' model, in which the public want to obey the law. Tyler and Darley would give two reasons for this in the present context. One would be because they think that the coronavirus restrictions are worthwhile in themselves, and that it is in their interests to follow them, the 'morality' approach. The other would be because they trusted the institutions responsible for implementing and enforcing the regulations sufficiently to go along with their demands, the 'legitimacy' approach.

But how is this to be achieved? Where the law in question is already in line with the moral sentiments of those subjected to it, or where there is already sufficient trust in the authorities, the task will be an easy one. Where it is not, however, it will be necessary to use persuasion. This brings us on to our third topic, that is to say the ancient art of rhetoric, which as we shall see also has a lot of relevance to our current topic.

(3) The Art of Rhetoric

Rhetoric has been defined as 'the art of using language effectively so as to persuade or influence others'. [78] Indeed, rhetoric is often called the art of persuasion, and scholars and statesmen down the ages have attempted many other definitions on the same lines. [79] To Plato it is 'the art of winning the soul by discourse'; [80] to Aristotle 'the faculty of discovering in any particular case all of the available means of persuasion'; [81] to Cicero 'speech designed to persuade'; [82] to Quintilian 'the art of speaking well'. [83] Fifteen centuries later Sir Francis Bacon said that the function of rhetoric was 'to apply reason to imagination for the better moving of the will' [84] whilst more recently Richard Weaver spoke of it as 'that which creates an informed appetition for the good'. [85]

As against this, others take a more cynical stance; thus to John Locke spoke of rhetoric as 'that powerful instrument of error and deceit', [86] whilst to Kenneth Burke its most characteristic concern was 'the manipulation of men's beliefs for political ends'. [87] Two things are of note here, one being the twofold role of rhetoric as a means of communication and persuasion, and the other being its ambiguity in moral terms. One possible reason for this involves the troublesome relationship between rhetoric and dialectic. [88] Dialectic has been defined in terms of a discourse to establish the truth by means of persuasion, which sounds very like rhetoric. However, it has been argued that the two have very different aims, the aim of dialectic being not merely to convince an audience but, in the words of Victoria Kahn, to 'elicit the practical truth we know as consensus'. [89] The distinction is a significant one, because if you take dialectic out of rhetoric all you are left with is persuasion for its own sake, something which may be of practical use in the world of affairs but lacks any moral content. [90] The effect of this may go a long way to explaining the pejorative connotations sometimes attached to the word 'rhetoric'. [91]

Be that as it may, the fact that the art of rhetoric can be used for base purposes is no argument for ignoring it; abusus non tollit usum, and the remedy for bad rhetoric is surely not no rhetoric but good rhetoric. Of course, a modern art of rhetoric [92] would look very different from the ancient variety. The focus of the latter was principally oral, [93] was targeted at the audience's sense of hearing, and was typified by the formal structured speech. The former would employ all the senses, [94] and would encompass media communications of all kinds. But what has all of this got to do with the focus of our present study?

For this we have to turn to the basic principles of classical rhetoric. Reflecting the requirements of a forensic or political speech, these were traditionally set out under five headings: inventio (content), dispositio (arrangement), elocutio (style), memoria (memory) and pronuntiatio (delivery). [95] These in turn were further subdivided; thus a speech might be arranged under exordium (the introduction), narratio (the statement of the case); partitio (flagging up what was going to be said), confirmatio (the central proof of the case), confutatio (rebutting the arguments of the other side) and peroratio (the conclusion). [96] However, for our purposes we need to go back further to Aristotle and his three 'modes of proof', ethos, pathos and logos. [97] The essence of ethos was getting the audience to listen to what the speaker had to say; this could involve an appeal to the credentials or character of the speaker, but also required the speaker to pay attention to the audience and to tailor the speech accordingly. [98] The essence of pathos was an appeal to the emotions of the audience, or in the words of Aristotle awakening emotion in the audience so as to induce them to make the judgment desired. [99] The essence of logos, in contrast, was an appeal to reason, or as Aristotle said, 'the proof, or apparent proof, provided by the words of the speech itself'. [100]

Now what is striking here is the way in which these ancient 'modes of proof' are reflected in the use of the 'four Es' mentioned earlier, [101] and in their relevance to our main question. The first E, engage, corresponds broadly to ethos, where contact is made with the audience and a constructive relationship established; this can be applied both to the need for the politicians to earn the trust of the public, and to the need of the police to be sensitive to the circumstances of those with whom they have to deal in this connection. The second E, explain, involves educating those concerned both as to the relevant law and the personal risks they are running if they do not observe it; this corresponds to logos, and once again can be applied both to those who make the law in this area and to those whose task it is to enforce it. With the third E, encourage, the public are guided and encouraged by police and politicians to do what is proper and an appeal is made to their good instincts by emphasising why it is necessary to keep to the law; this corresponds to pathos. Only if this fails should resort be made to the fourth E, enforce. In all of this both police and politicians should act with consistency, highlight their trustworthy motives, and treat the audience with dignity and respect; this harks back to ethos, and emphasises that the modes of proof are not a mere tick box exercise but should all be borne in mind throughout the relevant encounter. All in all, the four Es are not mere slogans or soundbites, but have their roots in an ancient and venerable tradition going back for millennia. The bottles may be new, but the wine is very old indeed.

(4) Therapeutic Jurisprudence

With all of this in mind, we may now turn to therapeutic jurisprudence. The essence of this, according to Bruce Winick and David Wexler, is the insight that law can be seen as a therapeutic agent, and that the legal rules, legal procedures and the roles of lawyers and judges can be viewed as social forces that sometimes produce therapeutic or antitherapeutic consequences. [102] They go on to add that the role of therapeutic jurisprudence is to study these consequences with the tools of the social sciences to identify them and to ascertain whether the law's antitherapeutic effects can be reduced, and its therapeutic effects enhanced, without subordinating due process and other justice values. [103] On the face of it, there would appear to be an obvious connection between this task and the issues that we have been studying so far, but some would question the appropriateness of using therapeutic jurisprudence as a lens for this sort of study. In the section which follows we shall look at some of these criticisms before suggesting how the insights of therapeutic jurisprudence might be relevant to the present study, both at a 'micro' and at a 'macro' level. In this connection we shall argue that therapeutic jurisprudence has its own particular contribution to make, most essentially in the normative sphere.

There have always been questions about the proper definition and focus of therapeutic jurisprudence. Writing as long ago as 1995, Christopher Slobogin identified what he described as five dilemmas in this connection, most notably the extent to which therapeutic jurisprudence could be distinguished from other enterprises that sought to improve public wellbeing through the use of law. [104] In responding to this challenge, Bruce Winick once again stressed the importance of the normative aspect of therapeutic jurisprudence, and argued that while its primary focus was on the areas of physical and mental health, it should not be too narrowly defined; on the contrary, any consequence that is arguably therapeutic and in at least some sense related to psychological functioning would seem to be within the broad contours of therapeutic jurisprudence. [105] Given the current debates on the extent to which the current coronavirus restrictions have safeguarded the physical health of the public at the cost of their psychological wellbeing, [106] the relevance of therapeutic jurisprudence in this context would seem to be beyond dispute.

As suggested above, its relevance can be seen both at a 'micro' and a 'macro' level. The first of these relates in particular to issues of enforcement, most notably by the police. In its early years the focus of therapeutic jurisprudence was primarily on issues of mental health, [107] and had an individual rather than a social emphasis, [108] but the perspective soon widened out to a considerable extent. In particular, it was argued that judging and legal practice generally should include the exercise of interpersonal skills, and that legal education should train legal professionals accordingly. [109] These insights applied with particular force to such professionals working on the front line interface with members of the public, notably the police, who soon became an important object of study from a therapeutic jurisprudence perspective. Once again, much of the emphasis was on the dealings of the police with individual members of the public such as suspects [110] and victims of sexual abuse, [111] and on the policing of particular disadvantaged groups in society, [112] but it was seen that similar insights could inform the conduct of policing in general. [113] One immediately relevant aspect of this, at least for our purposes, was highlighted by Nick Crofts and others, who argued for the need to apply therapeutic jurisprudence principles to study law enforcement personnel in their key role in promoting and protecting public health, including the control of infectious disease. [114] As we have seen, one feature of the early days was the threat posed to the legitimacy of the lockdown by the over-zealous use of enforcement powers by the police in some cases. [115] This is something that attention to the principles of therapeutic jurisprudence would go a long way to prevent.

The 'macro' level relates to the use of legislation and the legislative process, together with official pronouncements by ministers and other Government officials. In the early days the emphasis was very much on mental health legislation and its impact, [116] but attention soon broadened out to encompass other areas. [117] It was also realised that the therapeutic jurist could not afford to ignore the well-being of the community at large, [118] and it has recently been argued by David Yamada that therapeutic jurisprudence principles should inform both the processes of policymaking and the design of public policy. [119] So, to what extent have the lockdown regulations had therapeutic or antitherapeutic effects? To what extent have these been affected by the way in which politicians and others have interacted with the public? Above all, to what extent have the words and actions of those in authority served to increase or diminish the public trust that as we have seen lies at the heart of legitimacy? All of these are fruitful questions for the therapeutic jurist.

The point is an important one in our context, as only therapeutic jurisprudence can provide the normative element to our study. As Bruce Winick himself puts it: [120]

Unlike law and psychology and social science in law, which are empirically based ways of looking at law that often purport to have no normative agenda, therapeutic jurisprudence is normative in its orientation. It posits that the therapeutic domain is important and ought to be understood and somehow factored into legal decision making. Therapeutic jurisprudence suggests that, other things being equal, [121] positive therapeutic effects are desirable and should generally be a proper aim of law, and that antitherapeutic effects are undesirable and should be avoided or minimized. Because this normative agenda drives therapeutic jurisprudence research, it is not the neutral, value-free mode of scholarly inquiry that law and psychology and social science in law often try to be.

Thus bad laws and institutions can be readily consented to by the public; psychological insights can be used for base ends; rhetoric, as we have seen, has acquired an unsavoury reputation in some contexts. Therapeutic jurisprudence, on the other hand, by its very nature has to be therapeutic; true, there can be room for argument as to what is therapeutic in any given circumstances, [122] but that aspect of the matter cannot be ignored altogether. Our other theories are essential to move us forward, but only therapeutic jurisprudence can tell us where to go. How this relates to our present study we shall discuss more fully in the next section.

4. THE LEGITIMACY OF THE LOCKDOWN

Bearing all of this in mind, we may now return to our main focus, namely the legitimacy of the lockdown. Addressing the public on 23^rd June 2020, some three months after the restrictions began in earnest, the Prime Minister praised the public for their patience, saying: 'The Government has asked a huge amount of all of you, and the people of this country met that challenge with good humour and common sense'. [123] On the whole this seems to have been borne out by the facts. There were certainly instances where the regulations were flouted, [124] but these seem to have been the exception rather than the rule. More significantly, a number of polls taken during the course of the lockdown all indicated a high degree of public support, [125] despite increasing dissatisfaction as to the way the pandemic had been handled by the Government. [126] According to an analysis by University College London issued at the beginning of May, compliance with the restrictions hitherto had been voluntary and consensual, it being added that morality, social bonds, legitimacy and habit were much stronger predictors of compliance behaviour than deterrence-related factors. [127] Another comment from the London School of Economics cited a poll indicating 75% public support for the approach of the police, and went on to highlight two key elements to police legitimacy. [128] The first of these, termed 'normative alignment', involved the police acting in normatively appropriate ways, making appropriate decisions and treating people based on societally shared moral values. The other factor was the extent of people's internalised duty to obey the police based on willing consent, whereby they felt a moral obligation to obey the police and granted them the right to dictate appropriate behaviour.

Since then, of course, matters have moved on to some degree. At the time this article was being revised for publication, the country was in a 'second wave' of the pandemic, and on 31^st October 2020 further restrictions were announced by the Prime Minister. Yet public support for the restrictions does not seem to have been diminished: in a YouGov poll conducted shortly afterwards some 72% were in favour, and 42% strongly so; indeed some 33% of respondents said that they did not think the restrictions went far enough, and 50% were even willing to see them continue over Christmas. [129]

In the light of all this, it is worth asking, at least tentatively, what seems to have gone right and what not. Obviously no firm conclusions can be drawn in the present context or at the present stage. It will take some time before the picture becomes clearer, and it will require the collection and interpretation of a lot more data before we can begin to discern the lessons of the present pandemic. Nevertheless, we can hazard some preliminary observations in the light of our previous analysis, and that is what we shall now proceed to do.

So far we have argued that the legitimacy of the coronavirus lockdown can only be promoted by paying due attention to the principles of psychological jurisprudence, that is to say, by getting the public generally to 'buy in' to the restrictions, both because they are felt to be a worthwhile enterprise in their own right and also because they trust those responsible for making and enforcing them. The role of rhetoric in all this, as seen both in the classical 'modes of proof' and in the 'four Es', is to persuade the public to adopt this attitude in so far as the do not do so already. All of these considerations can already be seen reflected to some extent in the principles of therapeutic jurisprudence, but the crucial role of that discipline is to provide the normative element. In sum, we need to show that the coronavirus restrictions are worthwhile, and we need to persuade the public that this is so; the public will then be willing to abide by the restrictions, and their legitimacy will be established. So, to what extent has this been achieved? As we have argued earlier, no definitive conclusion is possible at this time and in this context, but the four main theories discussed earlier do provide some valuable insights into the issue.

We begin with therapeutic jurisprudence, not only because this is the underlying theme of these papers, but also because it provides the essential normative dimension to the project. As said above, we need to show that the coronavirus restrictions are therapeutic in the first place. This is not an easy question to answer. Therapeutic jurists will always be confronted with the problem of discerning what is therapeutic in any given case, [130] and this is especially so in the present context, where the advantages of the restrictions in slowing the spread of the disease (clearly a therapeutic end in the most obvious sense) have to be balanced against the harms done to the economy and in the area of mental health. [131] And even if the introduction of such restrictions are therapeutic in principle, there is still the question of their content; one of the disadvantages of legislation of this sort, as of any emergency legislation, is its tendency to lack of nuance and the imposition of a one-size-fits-all approach. [132] All one can do is to leave that question to one side for the moment, and ask whether, assuming that the restrictions are themselves on balance therapeutic, they are being enforced in a therapeutic way.

This brings us on to the issue of rhetoric. To what extent have the police, and to some extent the politicians, been effective in persuading the public to take the restrictions on board? In this connection we need to bear in mind Aristotle's three 'modes of proof', and the way they are reflected in what we have termed the 'four Es'.

First of all, engage. As we have seen, this corresponds broadly to the first of Aristotle's modes of rhetorical proof, that is to say ethos. In this connection the police were encouraged to build up a relationship of trust with the public by listening to what they had to say, by treating them with dignity and respect, and by demonstrating consistency in their approach. In the same way, efforts were made by the Government to keep the public in the picture, [133] most notably with the daily press briefings from Downing Street. Note can also be made under this heading of the emphasis on scientific evidence, and the presence of scientific advisors at the daily briefings in the early days of the lockdown, so lending weight to what was being said. On the downside the legitimacy of the guidelines was undermined on several occasions by the oppressive attitude of some of the police in the early days, [134] and also by the rather lax attitude to those guidelines of politicians and others who should have known better. [135]

Next we have explain, corresponding to Aristotle's logos. Here we see how police were enjoined to educate people about any personal risks they were taking, to explain the social distancing regulations and to highlight the responsibilities we all share. One problem here was the inherent vagueness of the regulations, most notably regulation 6(1), with its prohibition on leaving one's residence without 'reasonable' excuse. [136] As well as this, there were complaints about the inconsistent advice emanating from Government circles during the lockdown. [137] All of this undermined the legitimacy of the regulations; after all, one can hardly consent to a requirement when one does not understand what it entails.

Our third heading is encourage, corresponding to Aristotelian pathos. Police were to encourage people to abide by the regulations and to act reasonably, emphasising that social distancing and keeping to the lockdown saves lives. Here the appeal is to the emotions, both to the fear of the audience (in relation to their own lives) and to their sense of altruism (in relation to those of others). Obviously there is no way as yet of telling how this has worked out in practice in relation to the police, but it would be an interesting exercise to conduct a rhetorical analysis of some of the Government advice given during the lockdown from this perspective.

Finally, we have enforce. This too feeds back into ethos, in so far as the trust of the public in the regulations and those who enforce them must depend on the extent to which they have been fairly enforced. According to the statistics, some 16,019 fines for breaches of the regulations were issued in England and 2,637 in Wales up to 6^th July 2020, [138] and in Scotland 3,309 up to 8^th July 2020. [139] None of this suggests a heavy-handed approach to the enforcement of the regulations, and overall the police seem to have been reasonably sparing in this respect, though some concerns have been expressed about the possibility of racial bias in the number of fines issued. [140] It has been suggested that lack of trust may be a factor in this, which of course once again impacts on the key issue of legitimacy.

As previously argued, the aim of all this is to promote a climate of adherence to the law based on the 'psychological jurisprudence' model of consent rather than the 'social control' model of force and deterrence. As noted above, there are two aspects to the former model, one being assent to the law in itself and the other being trust in those who make and enforce it. If the polls cited above are accurate, we seem to have attained the former as far as most people are concerned, [141] but the issue of trust in the government and in its response is a rather different matter. [142]

5. CONCLUSION

With all of this in mind, we can now restate our original question: why, given the practical problems of enforcement, the lockdown regulations have been so widely observed. Applying our theoretical perspectives, we would argue that for the most part these regulations have met the criteria of legitimacy; the public has consented to them because they have been felt to be worthwhile in themselves (norm legitimacy) and also because they have been enforced in a sensible way (power legitimacy). Drawing on the insights of psychological jurisprudence, we can suggest that people may have kept to the guidelines both because they believed that to do so was morally right, and also because it conformed to the directives of a legitimate authority. Moreover, these beliefs may have been reinforced by the appropriate use of rhetoric, as seen in Aristotle's three modes of proof as exemplified in the use of the '4 Es'. Finally, all of this has reflected the principles of therapeutic jurisprudence, in that the result has been beneficial both in dealing with the risks posed by the coronavirus outbreak and also perhaps in promoting social cohesion in a more general sense. Of course, none of this proves that this is the case; that could only be done by empirical investigation. What these theoretical perspectives do is to suggest, on the basis of rational reflection, what is likely to be the case.

Two issues remain. One is the extent to which the four theoretical approaches investigated above, the theory of legitimacy, psychological jurisprudence, the art of rhetoric and therapeutic jurisprudence, are aspects of a wider whole. In the context of therapeutic jurisprudence this has been termed the 'identity dilemma', but it also applies equally to the other areas, to say nothing of similar approaches such as restorative justice and the study of law and the emotions. One day someone may undertake the task of exploring how all of these relate to each other, but this is not something that we can attempt here.

The other relates to the 4 Es: engage, explain, encourage and enforce. Leaving aside the last of these (though as we have seen it does impact on the other three), to what extent can this very useful approach, grounded as it is in so many different theoretical insights, be applied not only in the context of policing but at a more general level? There are, after all, many areas of law and policy faced with the challenge of changing public attitudes. Perhaps some new Quintilian might be encouraged to formulate a fresh approach to rhetoric using this framework, but once again this is a task for another day.

What this does go to show is the effectiveness of willing consent as a motivator for human behaviour. In Aesop's famous fable, the north wind and the sun lay a wager to decide who is the stronger, the challenge being to make someone take his coat off. The north wind blew with all his might, but the harder he blew the tighter the man held on to the coat. But when the sun came out, the man took the coat off of his own free will. The more attention is paid to the first three Es, the less need there will be to have recourse to the fourth.

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