By Alicia Ely Yamin, Senior Fellow
This digital symposium presents a pointillistic portrait of the spectrum of rights-related measures adopted to stop the spread of COVID-19 in dozens of countries around the world to date. The impulse for this symposium emerges out of the conviction that it is imperative that we emerge from the throes of this pandemic not only with the fewest possible lives and livelihoods lost, but also with democratic institutions and the rule of law intact.
Although the portrait continues to evolve, the time to begin collectively reflecting on lessons regarding the relationship between population health and decision-making in emerging, consolidated, and illiberal democracies alike — and their implications for the post pandemic future we want — is now.
Five years ago, Jürgen Habermas warned that the hollowing out of democratic substance from political institutions would leave capitalist democracies as “mere facade democracies.”
Numerous others, including Nobel laureate Joseph Stiglitz, have noted that the distance between what democratic political institutions promise and what they deliver has grown too large to ignore. Enter the novel Coronavirus pandemic, which presents a test for the legitimacy of democratic governance, in addition to virtually unprecedented public health and economic challenges.
As is evident from many of the analyses in this symposium, preserving and renewing democratic legitimacy in the wake of this global calamity calls for reimagining social contracts to address new domains, from the digital world to transboundary issues, as well as gaping substantive inequalities.
In the United States we have seen notoriously shambolic (in)action from the federal executive with limited oversight from Congress, and a chaotic patchwork of state-level responses made largely through gubernatorial executive actions. Contributions from around the world reveal variations in the intensity of measures to restrict privacy, movement and other rights, as well as differing degrees of public justification for actions taken. Just as in the U.S., elsewhere too federalism complicates the picture tremendously, as not just states and provinces but also municipalities and counties have adopted different rules as well as enforcement regimes.
One fundamental theme running throughout the symposium contributions is that in the case of such an unprecedented and as-yet not fully understood health threat, the basis for accepting the legitimacy of governmental actions is complex. All of the contributions implicitly or explicitly note that legal measures adopted — and equally, the lack of measures adopted (e.g., Brazil) — must be justifiable in terms of rapidly evolving empirical knowledge about the novel Coronavirus and the disease itself.
However, these contributions also suggest that contextual factors are essential in understanding what the impacts of the virus will be in any given country. For example, given different health system capacities, living conditions for the general population, and availability of funds to mitigate economic hardship, the appropriateness of response will inevitably differ in Norway from Kenya.
The legitimacy of rights restrictions also depends upon normative standards under international human rights law as well as domestic constitutional law. Interestingly, in many countries, implicit and explicit necessity clauses in constitutions as well as supra-national treaty derogation clauses have not been invoked, and the legal basis for measures thus has not been tested against such standards. In most countries included here, the judiciary has either not yet had to evaluate the legality of the enacted measures on the merits, or has accepted government rationales with cursory scrutiny. In some cases, courts are likely soon to review some dimensions of restrictions, such as the privacy effects of geospatial monitoring in a case brought by the Conservative opposition in Spain.
Further, we see that public perceptions of the legitimacy of governmental actions are inevitably shaped not just by formal, but also informal rules in relation to communal obligations and individual responsibility for the common good. For example, Jennifer Hasselgard-Rowe and Gian Luca Burci note that despite the supremacy of federal law in Switzerland, “Decisions whether to close specific public areas and the modalities of the individual and collective measures restricting individual liberties and freedom of movement were left up to the Cantons. Such reliance on personal responsibility is very rooted in Swiss political culture.”
However, even in states not considered traditionally democratic, acceptance of government actions is neither monolithic nor static. Even in China, for example, where whole cities were closed off, Wang Chenguang argues that frequent adjustment of enforcement and proportionality “is the key.” When “In the initial stage of COVID-19, some excessive measures were employed by a few local authorities, such as shutting down roads and humiliating confirmed or suspected patients,” Wang Chenguang writes, “The solution in China was to quickly identify the problems via the media and the government and to issue enforcement guidance, which are used as a regulatory tool.” In consolidated democracies from Europe to Oceania, multiple contributions point to the implications of the passage of time for the extent of parliamentary involvement and public deliberation required to ensure the acceptance of evolving legal measures as democratically legitimate.
It is also clear from these analyses that the social meaning of any particular measure cannot be interpreted in terms of formalistic textual analysis, in isolation from context. For example, the declaration of a state of emergency in Chile came after months of protest and just as a plebiscite for a new post-dictatorship Constitution was to be held. Brigit Toebes points to the possibly uniquely “open culture about death and dying” in the Netherlands, which together with legislation, has led to healthcare providers holding more advanced care planning conversations with COVID-19 patients, and in turn to many older persons indicating that they do not want intubation and other measures.
In short, the collective contributions in this digital symposium do far more than present data points regarding COVID-19 and the law. Legal scholars from within these countries, as well as from others, will inevitably disagree with some characterizations. And that is the point. Preserving the rule of law during and after this crisis depends to a great extent on the value we place on the free exchange of reasoned arguments and democratic processes.
With this symposium, we hope to contribute to the many ongoing discussions as to imperatives for strengthening democratic governance in the post-pandemic world.
Next week, at the risk of overgeneralization, I will highlight several key themes, among the many that arise from reading these collected contributions. A third piece at the end of the symposium will synthesize some conclusions, and look forward to questions of sustaining democracy and the rule of law in a post-pandemic future.