Novak Djokovic: The Legal Problem of Having One Rule for Some, Another for Everyone Else

Jerri-Lynn here. I happened upon this interesting video by Glenn Greenwald, discussing vaccine mandates and the Djokovic situation. Grab a cup – or pot! – of coffee and enjoy.

By Joshua Jowitt, Lecturer in Law, Newcastle University. Originally published at The Conversation

Since the start of the pandemic, anyone wishing to enter Australia has had to contend with one of the strictest immigration and quarantine regimes in the world. While requirements have been loosened for vaccinated visa-holders, tough rules remain in place for the unvaccinated.

Naturally, Australian residents and others around the world were surprised when unvaccinated tennis star Novak Djokovic announced that he was travelling to Melbourne to defend his Australian Open title, 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 powerful in a way that wouldn’t have happened for an ordinary citizen. The virus hasn’t given him a free pass for being a high-profile tennis player – so why should immigration authorities?

While at the time of writing, the outcome of Djokovic’s visa troubles was uncertain, the double standard of rules raises a much bigger question about the philosophy of law: can the application 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 frequently. Throughout the pandemic in the UK, the rich and powerful have claimed – often unbelievably – that their actions were permitted by rules that restricted 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 apply 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 cases 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 adherence to COVID guidelines following Cummings’ trip to Barnard Castle is a good example of exactly this.

This phenomenon is not only damaging for the rule in question, but for the system as a whole. If citizens lack confidence 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 opposite and increases doubt and uncertainty about what the law even is. And if enough rules exist that create uncertainty about what the law is and when it applies, 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 exemption to Australia’s vaccination requirement was illegitimate and should be rejected. Treating like cases alike requires 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 equivalent to vaccination and that this should be enough, but regardless of these details, the perception 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 exemptions.

COVID restrictions are already being questioned, and Djokovic’s situation deteriorates them further. Studies from almost a year ago show that people already began to break COVID rules when they saw more privileged people getting away with flouting them. It is likely that this disillusionment will only increase as people’s patience wears thin.

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  1. The Rev Kev

    The other day I was trying to work out if there was any possible way that I could care less about Novak Djokovic or his fate and came up blank. Personally I regard the whole saga as a political blow-up meant to distract people from the skyrocketing number of omicron cases or the rapid rise in deaths but that may just be me. Would the government blow up relations with Serbia as well as the sports world for a short term political gain? You may want to ask France about that.

    They say that we have one of the strictest immigration and quarantine regimes in the world but I doubt it. Once or twice I heard about returning millionaires who were given permission to quarantine at their own mansions and I would expect this to be a regular thing. And as popular as sports is in Australia, I noted the first year or two of the pandemic that when there were people breaking home quarantine or even openly flouting them, that it seems half the time they were football players – at a time when the governments here were bending over backwards for them to enable games to go ahead.

    But I ask you. How many times have you seen an event or party held by elites where the only people that were wearing masks were the servants? And it is still happening while the media tries to gave them cover by claiming that they are a ‘sophisticated’ crowd. I think that the one country that had the right idea was North Korea. One of their big-wigs went to China where he threw all caution to the wind and I think that he might have shared a hot tub. So when he got back the Norks shot him. Now I am not saying that they should have shot Obama for holding that super-spreader party of his. Well, maybe I am. But it is a truism that people will accept tough rules so long as they are fair. Try and impose tough rules that are rules for some and not for others, that is when the trouble starts.

      1. voislav

        Elections are coming up in Serbia in March, so the government is trying to score cheap political points.

        Lithium mining protests have a deeper background. Rio Tinto was unable to secure all the land needed for its lithium mine, because some of the locals refused to sell. So to accommodate Rio Tinto, the government introduced a new eminent domain law, which would have changed requirements for eminent domain property expropriation.

        Current law allows private property to be seized with compensation only for publicly-funded projects that are in the interest of general public, so roads, hospitals, etc. New law would allow seizure of property for any project, public or private, as long as it was designated as strategically important by the government. No limits were set on what could be designated, so potentially a housing development or a shopping mall could be designated as strategically important, property seized by the government with nominal compensation, and then given to a favoured private developer.

        So while the protests were triggered by a local issue of the lithium mine, what made them nationwide is the attempt to pass a deeply troubling law that would allow unfettered seizure of private property.

        1. Anthony G Stegman

          Similar eminent domain laws exist in the United States. A famous case in New London, Connecticut occurred some years back whereby the Supreme Court allowed the city of New London to seize property and give it to a private developer because it would expand the tax base.

    1. Carolinian

      Rev as you know you live in a place that was first colonized by people sent there for breaking often unjust and very arbitrary rules. I’ve been reading about the protests and wonder whether Australians really want to turn themselves into Singapore. Covid will be over eventually. A new epidemic of “rules”–so pleasing to the powerful–may be what we need to fear more.

      1. The Rev Kev

        ‘Covid will be over eventually’

        ‘Eventually’ is carrying a lot of semantic weight here. IM Doc talked about a Coronavirus that came out of Russia at the end of the 19th century and took about twelve years to settle down. If this is similar, then ‘eventually’ is about the year 2031. Wanna wait that long? That is, assuming one of the future variants has not got a lethality rate of another Coronavirus like MERS in which case we will see mass burial pits in cities like happened in America a century ago. As a society, we decided that it was more acceptable to have a high annual death toll than it was to reconfigure our economy to take into account this Pandemic but those with with power instead decided to keep the 2019 economy going while enriching themselves immensely. And our leaders and appointed medical authorities thought this a fine idea. And so here we are. With an explosion of cases internationally and an economy stalling out as there are not enough warm bodies to toss at it to keep it going.

  2. vlade

    I believe he got an exception due to having had CV recently (Dec). But then, does it mean _anyone_ who had CV within (say) the last month, can apply and will get an exception? Should not then the rule be changed to “triple vaccinated or a covid in the last month”?

    I dislike Djokovic, for many many reasons. But TBH, I find it hard to blame him and not Aussies on this. They decided the rules and they are bending them now (both ways).

    1. Tom Doak

      The rule in the USA is that American citizens can return home without a negative PCR test if they have had COVID and recovered within the last 90 days.

      I doubt that holds up to “the science” around Omicron, but as far as I’ve seen the rule has not been updated.

    2. The Rev Kev

      The day after he said that he found that he had Covid, Djokovic was photographed with a score or more of children while not wearing a mask. So either he lied about getting Covid or he put all those kids at risk. It’s one or the other.

      1. vlade

        Well, yes, but:
        – if anyone can get exception based on “just had covid”
        – and unless the Australia has a good reason to believe his covid positive test was false (which is hard, as “well, he broke Serbia’s rules on isolation” doesn’t really count in any other country).

        they should let him in. And I’m saying that as someone who would love him kicked out of the tournament.

        Oh, but if you want to see some really ridiculous stuff, look at what Serbia’s pols + his father are saying about the affair – that it’s a plot against Serbia, that he (Djokovic) is a champion of the poor (yeah, so he’s going to give away his fortune any day now, right?) etc. etc.

        1. JEHR

          I would not be surprised that, if Djokovic does get to play, many Australians in the audience may very well roundly “boo” him throughout. That’s what an Australian commenter said on TV.

          1. wilroncanada

            Hi fellow Canadian. There will be more than tennis balls on the court. Along with a huge racket.

        2. ChrisPacific

          “Already had Covid” is explicitly called out by the Federal government as not being a valid exemption reason. One of the most ridiculous things about this case is that there is still every likelihood that the visa was wrongly granted to him in the first place (and the court has not ruled on its validity).

          The court ruling is all about failure to allow him access to advice and right of reply when border officials cancelled it. I think it’s highly likely that the same thing happens many times every day to people without the legal resources or public profile to question it (border control is notorious for ignoring the law or operating outside it) but it turns out it doesn’t stand up to even casual scrutiny in a courtroom. So it’s a textbook case of justice for the high profile and/or wealthy only.

    3. voislav

      The whole thing is very shady. Australians are rightfully suspicious, I am pretty sure that he got a fake positive test to avoid vaccination requirement. It’s not a difficult thing to arrange in Serbia, I know a few people there who got government-issued vaccination cards without vaccination. When I was visiting in September it was fairly easy to get a negative test for travel, controls around testing and test labs are very loose. There is a strong anti-vaccine sentiment, especially amongst medical professionals, and it would take no effort to secure paperwork.

      It’s telling that Djokovic has to explain how he attended events and traveled internationally after supposedly testing positive on Dec. 16th, which would have required him to quarantine for 2 weeks. I’d say hubris on his part, he didn’t expect to have to explain social media posts where he is not wearing masks or taking any precautions, despite having covid.

      1. tegnost

        There is a strong anti-vaccine sentiment, especially amongst medical professionals

        Do you have a sense as to why this is the case?

        1. voislav

          Rampant corruption, cronyism and nepotism in the medical profession. Serbia has a very high emigration rate amongst highly educated, it loses 50 – 80% of its university graduating class every year. Medical faculty at the university are notoriously corrupt, there are set price lists for exams, so there is many graduates buy their way to a diploma.

          Capable graduates who actually study typically emigrate to Europe or North America because they can’t get a job since that requires either bribes or connections. This leaves behind those who are not only incompetent and corrupt, but also resentful of anyone who is competent. So all kinds of conspiracy theories (aliens, world government, 5G etc.) are rampant in the medical field, I guess as a way of rebelling against knowledge and competency.

          1. tegnost

            I have to point out that the knowledgeable and competent have not exactly covered themselves in glory, but rather a large blanket of dollar bills…
            Kind of like MAGA in the US, sure, a group that’s easily poked fun at, but trump killed the TPP, soooo… and who really hated that?
            The knowledgeable and competent who want a more secure and thicker blanket of dollars.

            1. voislav

              BTW, I am one of those knowledgeable people that you say haven’t covered themselves in glory. I worked for 50% of my current and prior salary for 18 month to help develop antibody testing to further vaccine research. We worked 10 hour shifts, 7 days a week, I’ve had 2 days off during a 6-month period.

              Excuse me if I feel insulted that somebody is suggesting that we are incompetent and motivated by profit. Scientists delivered several working vaccines in less than a year from the start of the epidemic, came up with several treatment methods and generally handled this as well as you could have hoped for. So, the complaint is what exactly? This is like complaining that Steph Curry shoots poorly, he is only making 50% of his shots.

              There are problems in the pharmaceutical industry and there are plenty of unscrupulous people in science that are motivated by money and power, but this is the case with any field. I would say that compared to the society as a whole, science has much fewer shysters and frauds.

                1. R

                  Do we need to take a poll? I care if he feels offended.

                  The knowledgeable AND competent are not the ones making bank off the pandemic, by definition. I think tegnost is making a category error and confusing them with the credentialed AND in power (I.e. the PMC from Saint Fauci downwards). It is regrettable when any inaccurately phrased insult hits a bystander.

              1. Objective Ace

                While the “vaccinations” are definetly a medical marvel and benefit to many, 10 or 20 years ago they would not have been said to be “working vaccines” just like we do not call flue shots vaccines.

                Your tireless work is appreciated, I just wanted to quibble with that framing

      2. vlade

        TBH, I have my suspicions re his convenient CV positivity and all.

        But from his public behaviour in Serbia it’s hard to say whether he bought it, or was just (based on what I heard, not uncommonly in Serbia, please correct if wrong) ignoring any inconvenient rules.

        1. voislav

          In Serbia there are no rules or laws, just guidelines :) There are plenty of people who would arrange this as a favour with no expectations of quid-pro-quo, just to stick it to the “vaxers”.

          Being who he is, people would’ve been lining up to do this, no need to resort to bribes or anything illegal. He’d go into the lab, say I need a positive test, they’d take the sample, process it and deliver the required result. Selfies would be taken, etc. and Bob’s your uncle.

    4. TimH

      Thacher gave Zola Budd a fast track to British citizenship bypassing international sanctions against apartheid so that she could run for GB in the 1984 Olympic games…

  3. witters

    “Try and impose tough rules that are rules for some and not for others, that is when the trouble starts.”

    That’d be “The Rules Based International Order.”

  4. BeliTsari

    “The Science,” translates as, whatever mandates or facilitates exponential income disparity, coercion & extractive exploitation; as PMC/ jet-set vectors fly in ever mutating new strains, cull our demographic by declaring us “essential” to feed, treat & deliver their Pelatons & gelato freezers; flipping serendipitously vacant rent-stabilized apartments, indenturing ill, chronically PASC survivors into disruptive, 1099 app-servitude and feeding us to PHARMA & FIRE Sector friends. They stride through immigration, while we’re mandated to add mutagenic standard-of-care snake-oil to mRNA vaccines as guinea pigs? I just cancelled diagnostic imaging for inflammatory vaccine side effects, because I’ve had Omicron! Kinda funny, really

  5. Tom Stone

    And not just Covid rules,
    “Should “is doing a lot of work here and the article reads like it was written by someone who gets tears in their eyes when they hear “With Liberty and Justice for all” sung by small children.
    Of course the wealthy and powerful ( And any entertainers they choose) are above the Law and those that embarrass the wealthy and powerful are punished with no regard to the Law.
    Who you are mattters.

    1. JBird4049

      Who we are does matter, but so does a nation’s faith in its society’s government, law, religion, customs, beliefs and so. Once the people in that society believe it is not worth maintaining, it’s a corpse that just has not fallen yet; what the very tippy top, its supposed elites, want really cannot stop this even if they do have all guns.

      The only thing that might prevent the fall is to actually fix what the population sees are the problems and not to threaten, scold, or use violence. However, I can’t think of any society’s elites actually doing the correct actions. I am sure that there must be some, but with most like with the Catholic Church with its Counter Reformation, that only happens after wars, dynastic collapse, and other fun stuff.

      Having laws for only thee, but not for me, is a good push towards tipping over into those fun times.

  6. CostcoPizza

    Athletes at this level are so incredibly fine tuned to their bodies (and what goes in them), that I’m not sure I’d want a relatively new vaccine + boosters either.

    Have him wear a N95 at all times except for match play and be done with it. At least he has some natural immunity.

  7. Gerd

    I asked some family in Australia what the locals thought about the Joker.

    They said about 30% wanted him deported, 30% wanted him to stay and 40% didn’t care.

    All reports in the media suggested around 90% of locals wanted him deported.

  8. Carolinian

    And if the “rules” violate both science and common sense? Authoritarians everywhere rejoice at articles like this.

  9. GM

    it’s a big mistake to look at the Djokovic situation and think that this is about “rules”.

    Australia is recording 100,000 infections a day right now, hospitals are slammed, everything is shutting down because so many people are out sick, etc.

    The vast majority of those infections are in vaccinated people because the vaccine doesn’t do anything to stop Omicron, at this point its primary beneficial effect is to prevent intubation, but not COVID more generally.

    And you had the QLD CHO at one of the press conferences saying “we want everyone to get COVID, it is necessary, it has to happen this way”, which summed up the government’s policy.

    How could it possibly matter whether Djokovic is vaccinated or not In that context? There were two arguments for vaccination:

    1. It stops, or at the very worst, reduces the spread
    2. It keeps people out of the hospital so it helps prevent a collapse of the healthcare system

    Right now the first effect is completely gone

    And the #1 tennis player in the world is not going to get intubated because of COVID because he is as low risk as it gets (we will eventually see a major sport star dying, and hopefully that will change people’s opinion about the dangers, but it will take years for all the rolls of that particular low-probability dice necessary for it to happen to take place; those people are the lowest of the lowest risk).

    Is Djokovic a piece of s*** scumbag when it comes to COVID? Yes, in the summer of 2020 he was positive and despite that did a round of all the clubs in Belgrade, where he has infected who knows how many people who then gave it to their grandparents, and we will never find out how many died as a result.

    But that should not make us blind to the fact that the sole purpose of this whole circus is to saturate worldwide headlines with a picture of how Australia is oh-so-strict about its rules and how it cares about stopping COVID.

    When the reality is that the policy is to infect everyone, as even blurted out by the people in charge.

    1. Basil Pesto

      yep. a ridiculous sideshow. Within Aus it also creates a pantomime villain for everyone to rail against, including Morrison who is in desperate need of political capital. To #2, not only is Djokovic not going to be hospitalised (although a 20-something double-vaxxed powerlifter with no known comorbs did die in Canberra last week :( ), but said hospital system is already on the verge of collapse – or at least, it’s certainly under extreme duress in NSW and Vic, with QLD and SA to follow.

      The QLD CHO is a disgrace. After his ‘this is necessary, it has to happen this way’ claim, people in QLD started trying to pozz each other at gatherings a la chicken pox parties. He then said “no don’t do that!!”. What the hell did you think was going to happen.

      Just absolutely wild stuff going on all over the world vis à vis public health

      1. juno mas

        Hmmm, powerlifters are usually big and bulky (muscle and adipose).They need to be inordinately heavy to create the kinetic energy that initially gets the heavy bar off the floor. Wouldn’t that body type be a “comorbidity”?

        1. GM

          Yes, high fat is a big risk factor, and the people who aim at actual strength rather than looks have a lot of it.

          I remember the case of a strongman who died in 2020.

          The first casualty of major-league professional athlete will likely be an NFL defensive tackle as those are actually clinically obese most of the time.

          1. MonkeyBusiness

            “high fat is a big risk factor”. I realized this early on so I am now 20 pounds lighter. I am still overweight mind you, but I am no longer obese per BMI ….. I am planning to lose another 20 pounds just to be safe.

  10. PlutoniumKun

    I hate to be the ‘rules are rules’ person, but if a rule is bad it should be removed, not amended constantly in practice until it becomes meaningless.

    Its not always the rich and powerful who utilise overly pragmatic judges. In Ireland, local judges are notorious for seeing themselves as the defenders of the ‘little man’ against the system (its often argued that this is a hold over from colonial days, when local courts more or less refused to implement any law that wasn’t local). A friend who used to work for a local Council said that this frequently caused chaos. In one well known tourist town, the local businesses would carpet the local roads with signs advertising their guesthouse/hotel/pub. They’d worked out that if they were on highway lands, they could be immediately removed, but if they put them on a fence boundary, it created sufficient legal ambiguity that the Council would have to go to court to get them removed. But invariably, local magistrates would use any excuse to favour the ‘poor local businessman being bullied by the evil Council’.

    The result was inevitable – absolute anarchy with anyone, big or small business, just plastering the countryside with cheap disposable signs. The Council simply gave up enforcing the rules.

  11. david anthony

    I have a real hard time stomaching listening to what’s happening to tennis players and vaccines when it comes top Australia, when it has one of the most brutal and destructive immigration policies in the world. Children have been held so long on Nauru they have gone catatonic. In the building Djokovic was held in there are people who have been there 9 years without getting a hearing like Djokovic received.

    So, sorry, I have absolutely no concerns about boys not being able to play their game when people are being treated so poorly by this government that their bodies shut down.

    1. Carolinian

      Sounds Kafka-esque. But surely you aren’t suggesting that Djokovic be detained for nine years in the name of fairness. Could be it’s the bureaucratic impulse to make unreasonable rules that applies in both cases. And some of us would contend that the way Covid is being handled in Australia, of for that matter this country, is wrong.

      1. david anthony

        Wow did you go the wrong way with that. No, I’m suggesting rich tennis player boy deserves not one second of anyone’s time. There are more important things going on with the Australian border. If Kim Kardashian can’t get across at El Paso, I don’t care.

        Go talk to the Australians living in WA with no COVID. It’s a wonderland. Sorry that doesn’t work with your bizarre definition of “freedom.”

  12. Stephen Masters

    The suspension of disbelief is required to get anywhere near an understanding of this saga of ineptitude. It is now a classic Catch-22 so whatever decision is made by the Australian government they lose and they lose big- time. That is, if they can actually make a decision. If Novak Djokovic is deported because of not being vaccinated (or having an invalid exemption) this will expose the fact that exceptions were made to permit entry. In other words rules bent to get the world’s No.1 tennis player to attend the Australian Open (AO) which is a mega event watched by billions and generating multi-millions. The stupidity here is granting a visa without proof of vaccination. So the person arrives and is then asked for proof. The judge – in court- said: “what more could this person have done?” Every requirement of the government was fulfilled including formidable documentation granting an exemption. If this tennis player is allowed to stay and play then that is proof that the AO can facilitate the arrival of star players, with the government acquiescing in this process, even when the player is not vaccinated. This is an insult to the thousands of citizens who remain trapped overseas during this pandemic who have been treated with contempt. Tennis is highly entertaining but there are more important things. Consider this: when this tennis player was detained at Melbourne airport he was taken under guard to a detention hotel. This hotel is where an unknown number of human beings are detained indefinitely- for indefinitely read: for the rest of their lives unless they agree to return to their country of origin (from which they have fled for their very lives) being deemed illegal immigrants. Many have been held without trail for over nine years! NINE YEARS. This is absolutely true. No further suspension of disbelieve is required.

  13. Nothing

    Happy to see that all of the Australian commentariat at NC all share the opinion that “this is political theatre to distract people from government policy failures”. While Novak takes headlines, shelves are empty, daily deaths rise to 50, and essential workers with covid have to go back to work.

    Of course, all very good points in the article about how a rule for me not for thee erodes trust in the government and leads to an increase in rulebreaking.

    But my frustration of course with the Novak drama is the fact that a vaccinated person with Covid is fine to enter Australia (how else did an island nation get a South African variant), but an unvaccinated person without Covid is barred as a Biosecurity risk….

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