By Alicia Ely Yamin, Senior Fellow
This digital symposium presents a pointillistic portrait of the spectrum of rights-related measures adopted in response to COVID-19 in dozens of countries around the world. 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.
That portrait will invariably evolve during the duration of the symposium, and long beyond. Nonetheless, now is 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.
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 our political and economic institutions promise in democracies, 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 perhaps unprecedented public health and economic challenges.
Unlike a mere compilation of survey responses about COVID-19 and the law, or tracker of legal responses, the comparative approach adopted here allows for mediating between the legal and social particularities of country contexts and universal take-aways. Contributions reveal variations in the intensity of measures to restrict privacy, movement, and other rights, as well as the effects of differing democratic and federalist designs and wide-ranging approaches to enforcement for non-compliance.
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 (in)action is particularly complex.
First, governmental responses must be justifiable in terms of rapidly evolving empirical knowledge about the novel Coronavirus itself, which largely depends upon technical expertise. The dismissal of the severity of the health threat by the president of Brazil undermines claims of responsiveness to public needs. On the other hand, courts in Ireland and elsewhere are acknowledging public health information when dismissing libertarian challenges to some restrictions.
Second, the legitimacy of any rights restrictions depends upon normative standards under international human rights law as well as domestic constitutional law. Interestingly, in many countries, formal derogations from international law have not been invoked, and the legal basis for measures thus has not been tested against standards set under regional and international treaties. In most countries included here, states of emergency or exception were declared under pre-existing legislation, and in virtually all cases executive decisions regarding a wide array of measures have been effected through regulations and executive and /or ministerial decrees. In Denmark, for example, the health minister has assumed an extraordinary range of regulatory and enforcement powers during this crisis. Multiple authors question the proportionality and determinacy of regulations; in others such as Hungary and Argentina, Csaba Győry and Roberto Gargarella take issue with the sweepingly broad scope of emergency powers conferred upon or assumed by the Executive.
Third, across these contributions we see that legal responses are not limited to formal rules; indeed, informal rules shape both the impact of responses and their perceived legitimacy. For example, in Norway, Kristin Bergtora Sandvik and Malcolm Langford note the importance of deeply ingrained traditions of collective work for the common good. Sweden, which has famously adopted a “laissez-faire” approach also relies on such ingrained traditions, but as Behrang Kianzad and Timo Minssen note, collective responsibility is supported by ‘nudging’ approaches, such when the city of Lund dumped 100 tons of chicken manure in its central park to discourage residents from traditional picnics during a national holiday.
Fourth, it is 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, in Argentina, Gargarella points to the tragic history of abuses of emergency powers. In the Netherlands, Brigit Toebes points to the “open culture about death and dying,” which 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.
Finally, even in states not considered traditionally democratic, perceptions of the legitimacy of government actions is far from static. In China, Wang Chenguang argues that frequent adjustment of enforcement and proportionality “is the key.” Contributions from Israel to Italy point to the implications of the passage of time not just for the extent of parliamentary and judicial oversight required, but also for perceived legitimacy. As noted in entries from South Korea to South Africa, whether or not the virus is effectively contained, the passage of time can also be expected to affect calls for greater public deliberation beyond formal legal institutions of the state, e.g., in relation to the deployment of surveillance technologies and economic mitigation measures.
In short, the collective contributions in this digital symposium do far more than present abstract legal data points regarding COVID-19. Legal scholars from within these countries, as well as from others, will inevitably disagree with some characterizations. And that is the point. Democracy itself is an ongoing argument and 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.
With this symposium, we hope to contribute to the many ongoing discussions as to imperatives for preserving and renewing democratic governance and the rule of law in the wake of this global calamity.