Although some of the common challenges identified across our global survey of legal responses to COVID-19 have their roots in long-established realities, the economic and social inflection point created by COVID-19 provides an opportunity, as well as an imperative, to consider how these responses will shape social norms and structure democratic institutions in the post-pandemic world.
Before COVID-19 we had abundant evidence that even the most “consolidated democracies” do not sustain themselves. Extreme economic inequality distributed along racial and ethnic lines and polarizing political dysfunction both had taken a toll. Globally, the world’s richest 1% owned as much as the rest. Since the philosophers of ancient Greece, scholars have noted that great wealth inequality is fatal to democracy, including through increasing the gap between the elites and the general public, and between those who make laws and policies and those affected by them, in health and beyond.
Almost everywhere, we had also been living with the effects of decades of political dysfunction. As Jürgen Habermas observed, “the arrangement of formal democratic institutions and procedures [permitted] administrative decisions to be made largely independently of specific motives of the citizens.”
The perceived lack of transparency and unfairness of both national decision-making and global economic arrangements, coupled with the apparent impotence of ordinary citizens to create substantive change, tapped into a justified rage at the administrative state and the political classes representing it. That, in turn, ushered a wave of populists into office over the last decade, from Orban to Bolsonaro. Among other things, these leaders tended to eschew the need for independent institutions, and in some cases scientific expertise.
By the time a deadly pandemic swept the globe, a significant number of people in a significant number of countries, including the U.S., had come to “think that everything was possible and that nothing was true.” Infection rates and death tolls are difficult to spin, although an “infodemic” of misinformation, which spread on the internet, allowed some governments (e.g., the U.S., Brazil) to do just that, or to actively suppress data, with devastating results for health and democracy.
The keen relation between truth, trust, and democratic legitimacy has played out across the countries included in this symposium. Unsurprisingly, where we see high levels of transparent information-sharing and explanations and justifications of measures adopted (including course corrections and modulations), public acceptance has tended to be higher (e.g., Germany, Finland). But political trust needs to be continually earned, and traditions of transparency are deeply ingrained; they do not begin during pandemics.
Moreover, these analyses show that credible information is not enough; mitigation of economic consequences on livelihoods, robust, universal access to health care, and trust in the public health authorities are crucial factors in perceived legitimacy of government responses. Thus, it is not a surprise that, as Langford and Sandvik note with caveats, Norway is a success story. The outbreak was contained relatively quickly, and “The sovereign wealth (oil) fund was tapped to bolster public spending and ensure that welfare for most citizens remain relatively unchanged.”
But in many of the countries included here, the starting point was significantly different. For example, in Nigeria, despite its extreme oil wealth, Cheluchi Onyemelukwe notes inadequate support from government, a large informal sector that reduces people to daily subsistence, and an absence of social safety nets. In Peru, Eduardo Dargent and Camila Gianella note the historic lack of institutional capacity as a source of both infection and economic devastation.
The symposium has underscored that health in pandemics and “normal times” is tethered to the functioning and arrangement of major institutions in society—including health systems. Highlighting the distributional consequences of laws that have reinforced neoliberal policies, multiple countries included here reveal the effects of decades of defunding and/or privatizing health insurance and provision (Ireland, the Netherlands, the U.K.). As evident from Argentina to Peru, Latin America’s fragmented and fragile health systems are exacerbating inequalities and limiting the ability of governments to modulate containment policies.
More broadly, stark inequalities in the social determinants of health, often reinforced by those same economic policies, are bad not just for those kept low on the social ladder, but for overall population health. The very high rates of infection in disadvantaged groups enlarge the curve for everyone in a society. As shown from Kenya to India, poor people with other intersectional identities are the “essential workers,” migrant laborers, and others in informal sectors who are systematically exposed, have no social benefits, and often bear the brunt of enforcement measures by security forces.
At the same time, unlike in more egalitarian societies, in countries from Peru to South Africa, these same poor people often live in overcrowded housing and/or lack water to wash hands; they cannot isolate for both economic and physical reasons, which in turn spreads the virus more broadly. That is, stark social inequalities are bad for both public health and democracy.
The greatest take-away with respect to commonalities, as well as these contextual differences, may be the role of the law in reflecting and shaping the moral and structural foundations of our democracies, whether through macroeconomic policies, the balance between public and private capital, labor structures, and the organization of critical social systems, including health systems.
As John Rawls noted, “[t]he kind of lives that people can and do lead is importantly affected by the moral conception publicly realized in their society.” The staggering scope of COVID-19 is now laying bare the effects of legal architectures both symbolically, through public conceptions of moral responsibility for poverty, and materially, through the devastating effects the pandemic has wrought on diverse people’s life chances.
Yet some authors point to the opportunity for reimagining governmental responsibilities and advancement of social rights opened by the sheer dimensions of this crisis. In Spain, for example, the government nationalized private health providers in the context of the pandemic, and also introduced a universal basic income. Further, in a world where refugees constitute a larger population than three-quarters of the countries on the planet, Dorothy Estrada-Tanck reports “alternatives to migratory detention are now a reality and the possibility of ending migratory detention as a structural and permanent option in the aftermath of the lockdown is now a prospect within reach.” Ruth Fletcher points to the fulcrum point in Ireland now between “welfarisms that enable and welfarisms that suffocate” and notes that the pandemic has brought about telehealth for abortion only two years after a constitutional ban was overturned. Stéphanie Dagron notes the reawakened concern for health as a constitutional value in France. In South Africa, Mark Heywood reports government promises to adopt more egalitarian policies post-pandemic.
In short, the entries in this symposium show how much is at stake in the legal responses to this crisis. This is not the last global pandemic, much less the last global challenge that threatens to undermine democratic norms. Preserving and deepening our democracies calls for collective reflection on the challenges and opportunities raised by authors here.