Chapter 1
Public interest or social need? Reflections on the pandemic, technology and the law
Introduction
Writing in the aftermath of the 1848 European-wide revolts, Juan Donoso Cortés, one of the counter-revolutionaries whose ideas greatly influenced the thought of Carl Schmitt, developed a theory of dictatorship. In this he compared the life of society to human life, arguing that both the human body and society may be invaded by forces, which in the case of the human body are called illnesses. In the case of society, when these invading forces are concentrated in political associations, ‘the resisting forces concentrate themselves into the hands of one man’ (Cortés 2000, 47). He was not the first to use this metaphor (Kantorowicz 1998; Esposito 2011) and certainly not the last to invoke this exemplary form of emergency law to defend the salus populi.
The Roman principle salus populi suprema lex lies at the heart of emergency law requiring the state to protect the health and promote the welfare of the people. In terms of the Coronavirus pandemic, the ‘illness’ is not metaphorical. The pandemic threatens the salus populi, i.e. the health of the people, in a literal sense. Consequently, the measures to protect public health necessarily assume a generality and urgency which cannot be contested. Nevertheless, several critical voices have been raised against these measures. This is partly because the pandemic affects the salus populi in more than one way: it affects not just the health aspect of salus but also the welfare aspect of it.
This antithesis between health and welfare – protection of health and protection of the economy – has been central in framing different countries’ responses to the pandemic. Of course, what measures promote the welfare of the people is a controversial matter and certainly open to interpretation, determined by the class standpoint of the interpreter. It is, for instance, highly controversial to invoke the salus populi in order to combat a social uprising for decent working and living conditions. It is equally controversial to invoke the ‘public interest’ – a manifestation of the salus populi – to introduce measures intended to ‘save the economy’ by worsening the working and living conditions of the majority of the population.
Nevertheless, as we shall see, in the context of the pandemic the exceptional form of the law of necessity contributes to the perception of measures as being ‘necessary’, ‘non-negotiable’, ‘technical’ and certainly as promoting the ‘common good of the social whole’. The legal formalist1 view of the measures tends to accept their legality and constitutionality because of their temporariness, as well as their technocratic legitimacy. It is widely accepted that the measures are a technical, scientific response to both the public health and economic consequences of the pandemic. This narrative of neutrality and temporariness is based on a positivist understanding of technology, science and the notion of the common good.
The goal of this chapter is to unearth the partiality and class orientation of the measures taken to deal with the pandemic, which are hidden behind the invocation of the ‘public interest’. To this end it will examine some of these measures through the prism of a series of contradictions. We will begin with the legal formalist perception of these measures which approached them based on the contradiction between public interest and fundamental rights. The first section will focus on this debate as it developed in Greece, because the existence of a codified constitution and the use of an emergency form of legislation brought this contradiction to the forefront of the debate with greater intensity. The next sections will focus on specific aspects of the measures’ content. In particular, measures addressing the economic consequences of the pandemic, as well as specific technical measures such as teleworking and digital surveillance, will be examined in order to show that the contradiction between health and economy determines the scientific response to the pandemic. On this basis, the view that these measures are temporary and technical – that they unequivocally promote the public interest based on the advice of experts – will be contested.
The final section will examine the contradiction between partiality of interest and absoluteness of social need. The former will be approached as a contradiction in terms and will be measured against the latter. ‘General interest’, a central concept in emergency legislation, provides a justification for the expansion of practices that rely on technological development, such as teleworking and telemedicine, on the occasion of the pandemic. Nevertheless, a close analysis of these practices reveals the partiality of economic incentives and profit making as the constant and underlying cause for their expansion. The absolute and universal character of social need, determined by the level of development of productive forces, thus can form the basis for a comprehensive critique of the unity of form and content of the bourgeois state and law’s response to the pandemic.
Fundamental rights and public interest
The existence of a written, codified constitution in Greece means that any law can be tested by the courts for its accordance with the Constitution. In the context of the pandemic, this resulted in an extensive and fruitful debate about the possible interference by legislative measures taken to deal with the pandemic with fundamental rights enshrined in the Constitution, as well as the proportionality of those measures. The response to the pandemic has for the most part assumed the legal form of ‘acts of legislative content’. This is a form of emergency law that the executive branch of government may enact in times of crisis, based on article 44(1) of the Greek Constitution. Using this mechanism of ‘fast-track’ legislating, the Greek government implemented policies of social distancing and lockdown, which included restriction of movement, closure of borders to all non-EU citizens, closure of educational institutions, businesses and public spaces and the prohibition of gatherings. In particular, restriction of movement was enacted through the common ministerial decision (i.e. a form of delegated legislation) of 22 March with reference to the act of legislative content of 20 March.
Arguably, several fundamental rights enshrined in the Greek Constitution are engaged by such measures: freedom of movement (article 5(3)), economic freedom (article 5(1)), freedom of assembly (article 11), freedom to unionize (article 23) and religious freedom (article 13). The legitimate aim that is pursued by the provisional limitation of these rights is the right to health. This right appears in the Constitution both as an individual right (article 5(5)) and as a social right (article 21(3)). The common ministerial decision providing for the restriction of movement invoked the interpretative clause of article 5, according to which the general prohibition of individual administrative measures that restricted the right to free movement found in article 5(4) did not preclude the imposition of measures necessary for the protection of public health. Therefore, public health is arguably recognized by the Constitution and the courts as one of the major components of the public interest.
The debate among Greek constitutionalists has focused on the contradiction between fundamental rights (free movement, free development of personality, privacy, religious freedom, economic freedom, freedom of assembly) and general interest concretized in the protection of public health (Fotiadou 2020; Vlachopoulos 2020). This has also been expressed as a contradiction between liberty and security, concretized into an opposition between free movement and the security of others (Christou 2020). The majority of thinkers agree that these rights are qualified rights whose temporary limitation can be justified for reasons of public health (Vlachopoulos 2020; Karavokyris 2020b), despite deviating from the normal operation of the rule of law (Kontiadis 2020). Certainly, worries are expressed about the far-reaching nature of these measures, especially regarding the restriction of movement. The danger of a ‘constitutional mithridatism’, which would normalize the idea of suspending fundamental rights so as to protect higher goods, is identified (Vlachopoulos 2020). This imposes a requirement that the measures are only temporary, to be lifted as soon as the threat of the virus passes and never to be used again in dealing with any other ‘enemy’ (Vlachopoulos 2020; Alivizatos 2020b).
Any worries expressed over the implications of the measures are neutralized by the recognition of their urgent and self-evident character. It is interesting to note that certain thinkers invoke the factual situation to point to the self-evident suitability of the measures: ‘the legal argument is inevitably mediated, not to say absolutely determined, by the real facts, the overwhelming scientific data on the coronavirus ... and their pragmatological correlation with the temporary restrictions on rights’ (Karavokyris 2020a, emphasis in the original). It is, therefore, assumed that all citizens are able to recognize the importance of these measures and accept their legitimacy to the extent that they are necessary to protect the ‘existential principles of life, health, security’ (Kontiadis 2020).
Some thinkers go even further and celebrate the fact that this crisis has unequivocally put scientists and technocrats at the forefront of decision making: ‘experts have the final say’. This is viewed as a ‘victory of reason over populism’ (Alivizatos 2020a). The argument draws a sharp contrast between the response to the COVID-19 crisis, where prime ministers are flanked by experts of epidemiology who seem to be dictating the measures, and the response to the financial crisis of 2008, where the technocratic expertise of institutions that cannot be held to account (like the International Monetary Fund or the European Central Bank) was contested on grounds of legitimacy. An implication of the COVID-19 crisis, it can be argued, will be the reopening of the discussion of ‘technocracy versus representation’, this time with a shift in the balance of forces. The technocratic legitimacy of the measures derives from their scientific authority, which attests to their technical – rather than political – character. This view is strongly influenced by a positivist understanding of science and technology which sees them as neutral and purified from politics.2
The recognition of the technocratic legitimacy of the measures is coupled with praise for the decisionist nature of the political response to the COVID-19 crisis. This praise is not restricted to the Greek prime minister, who was ‘daring where, in theoretically more advanced countries, his counterparts hesitated’, but extends to a celebration of the emergency institution of ‘acts of legislative content’ (Alivizatos 2020b). Combining technocratic expertise and decisionist apparatuses, the state also serves a pedagogical function, giving every citizen a ‘lesson of ethico-political behaviour’ (Karavokyris 2020b).
We conclude that, according to the dominant legal formalist view, the measures are proportionate to their legitimate aim because of their temporary and scientific character. In parallel, their scientific content and technocratic form contribute to their self-evident and non-negotiable status. The unassailable universality of the measures is based on scientific objectivity and neutrality, which, coupled with their temporariness, leaves no doubt as to their proportionality and constitutionality.
Nevertheless, legal formalists are neither unanimous nor unequivocal in accepting the measures as a whole. In this context, a critical approach based on the principle of proportionality has been developed. According to this view, measures that involve the restriction of fundamental rights, such as the freedom of movement, fail the test of proportionality, in particular the test of suitability. The argument is as follows: if a general restriction of movement is appropriate, suitable and necessary to combat the pandemic, why has the government not proceeded with more suitable measures, such as the requisition of private clinics, the commandeering of productive units to redirect their production to health material and equipment, and the setting up of additional intensive care units? After all, these measures would be directly related to the fight against Coronavirus (Kaidatzis, Kessopoulos and Kouroundis 2020). Further measures could be added to this list, such as the contravention of the patent protection afforded by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) through the use of compulsory licences and the parallel import of medicines.
The appropriateness and suitability of a general restriction on movement ultimately depends on the adoption of a series of parallel measures which are equally necessary, including measures that restrict economic freedom and private property, especially when the exercise of these rights assumes an ‘anti-social character’ (Kaidatzis, Kessopoulos and Kouroundis 2020). The predicament of the COVID-19 pandemic highlights that the exercise of fundamental rights may assume an anti-social character under specific circumstances: for instance, unrestricted movement may endanger public health. If the exercise of social and workers’ rights (such as the right to unionize and to freedom of assembly) can be construed as anti-social, this is even more so with regard to unrestricted economic freedom, which takes the form of profiteering on medical apparel and protective equipment, or the non-participation of the private health sector in the national effort to tackle the pandemic.
This is a carefully developed critical argument within the positivist discussion of the measures. In fact, it lays the groundwork for a critique of the Coronavirus crisis legislation from a social needs perspective. In doing so it also constitutes a missed opportunity to unearth the real anti-social character of private property and economic freedom. The protection of private property is a structural characteristic of the bourgeois state, which predominantly operates in order to ensure the reproduction of capitalist social relations, central among which is the private ownership of the means of production (Althusser 2014). As a result, any measure that restricts the latter constitutes a prohibitive parameter in the socio-political equation, similar to a division by zero in mathematics.
Public health and economy
The last point in the previous section is crucial for grasping the determinant role of relations of production regarding the form and content of the Coronavirus emergency legislation. The socioeconomic and class-oriented content is most evident in measures that deal with the economic consequences of the pandemic. At the time of writing, it is undeniable that an economic crisis is developing. Economic forecasts predict a contraction of 3–5 per cent of global GDP, which is worse than the recession of 2008 (Roberts 2020b). JPMorgan economists predict that the pandemic could cost the world at least $5.5 trillion in lost output over the next two years (Roberts 2020a). The economic consequences of the pandemic are already affecting millions of people who have lost their jobs and have struggled to satisfy their most basic needs for months.
Furthermore, it has been strongly argued and effectively shown that the pandemic acted as a catalyst for a capitalist crisis that was bound to arrive. Several countries among the G20 nations, and Japan among the G7, were already in recession, while the Eurozone and the UK were close (Roberts 2020d). The Coronavirus pandemic has been characterized as ‘the straw that broke the camel’s back’ (Mavroudeas 2020). The pre-existing problems of declining capitalist profitability and over-accumulation of capital – that is, the accumulation of excess capital that could not be sufficiently profitably invested (Carchedi and Roberts 2018) – had already set the scene for the eruption of a new crisis. Characteristically, the industrial sector – that is, the heart of productive activities – was already in recession long before the pandemic broke out (Mavroudeas 2020).
The above points confirm that the contradiction between public health measures and their economic consequences derives from the nature of the capitalist system. Capitalist social relations set the absolute limits on the scientific, legal and political response to the pandemic. For example, it has been argued that a capitalist economy can stand a smaller period of stoppage compared to a socialist economy. The reason for this is that capitalist enterprises operate for profit, or else they have no reason to exist, whereas a socialist economy can survive without achieving surplus (profits) by simply covering production costs (Mavroudeas 2020). As a result, the limits to the capitalist response to the pandemic are set, on the one hand, by the depletion of public health systems following decades of underfunding and privatization, and on the other by the economic effects of the lockdowns which result in unemployment, hyper-inflation and economic depression (Roberts 2020b).
A careful look at the measures addressing the economic impact of the pandemic reveals their class orientation and casts doubt as to their technical and temporary character. At first glance it seems that the economic burden of dealing with the crisis is placed on the capitalist state, which subsidizes private businesses that close or work under severely limited capacity. Thus, the state covers most of the wage costs of these businesses through various labour allowances (such as the furlough scheme in Britain). It has been calculated that on a global scale governments have announced ‘fiscal stimulus’ packages of around 4 per cent of GDP and another 5 per cent of GDP in credit and loan guarantees to the capitalist sector, which is more than double the amount of the fiscal bailouts in the last financial crisis (Roberts 2020c).
The stimulus package for the US economy is characteristic of this. On 27 March 2020 the US president signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act after it passed through both chambers of Congress. The relief package introduced by the CARES Act amounts to $2 trillion and includes: direct financial assistance to individuals and families; aid to small businesses; loans for distressed companies; and additional funding for unemployment insurance benefits. In Europe, Council Regulation 2020/672 established the instrument for temporary Support to mitigate Unemployment Risks in an Emergency (SURE) in order to provide financial assistance of up to one hundred billion Euros in the form of loans from the EU to affected Member States to address sudden increases in public expenditure for the preservation of employment. The Greek government has made use of this mechanism in order to establish the SYNERGASIA programme, according to which private sector employers who join the programme can reduce the weekly working time of their employees by up to 50 per cent without amending their employment contracts. These companies are entitled to financial support amounting to 60 per cent of the employees’ net salaries as long as they remain underemployed.3
These and other similar packages have been praised (Hutton 2020) as restoring Keynesianism to its proper place. It appeared that the lessons learned from the 2008 crisis had prepared the way for the triumphant return of Keynesian economics. A more careful look, however, reveals both the class orientation of the measures and their ineffectiveness in dealing with the root causes of capitalist contradictions. First of all, these measures have been around for at least a hundred years and are modelled on the German Kurzarbeit scheme to tackle unemployment and save capitalism from its contradictions. Such packages pave the way for more permanent forms of state support for private companies in the name of combating unemployment. They address the intensification of capitalist contradictions, on the one hand, by helping to sustain a level of consumption necessary for capitalist production and, on the other, by preventing popular unrest. Additionally, it has been argued that these measures in reality ‘socialize’ the burden in the sense that other social classes, apart from the capitalists, share it (usually disproportionately) through taxation (Mavroudeas 2020). Contrariwise, the benefits of such packages are not shared equally. More than two-thirds of the US package went outright to cash payments and loans to businesses that may not be repaid, whereas just one-third will be used to help the millions of workers and self-employed to survive through cash handouts and tax deferrals (Roberts 2020c).
However, this temporary return to Keynesianism, which seems to vindicate the advocates of Modern Monetary Theory,4 is hardly sufficient to save capitalism from its contradictions. The reason for this is that it ignores the social structure of capitalism, where production and investment is made in the anticipation of profit and not in order to meet social needs. Satisfaction of needs (i.e. the use-value aspect of a commodity) is only a means to make profit (through the process of valorization). As a consequence, the rate of profit, as well as the existence of conditions that guarantee a high rate of profit, is crucial. On the one hand, this indicates that investment of capital does not depend primarily on whether the government has provided enough ‘effective demand’ (Roberts 2020a). Reluctance to invest is not a result of absence of effective demand but of low expected profitability. It follows that much of the fiscal package will probably end up ‘either not being spent but hoarded, or invested not in employees and production, but in unproductive financial assets’ (Roberts 2020a). This partly explains why stock markets bounced back as soon as central banks pumped in cash and free loans.
The problem is that the tendency of the rate of profit to fall inheres in the capitalist mode of production due to its contradictory nature (Marx 1991, 317–38). Arguably, this is the main factor that leads to recurring crises of production and investment (Carchedi and Roberts 2018; Roberts 2015). As identified by Marx, the law of profitability is based on both the law of value, according to which only labour creates value, and the law of accumulation, according to which the means of production will rise to drive up the productivity of labour and to dominate over labour. These laws create a contradiction between rising productivity of labour and falling profitability for capital, which leads to recurring crises that devalue capital and thus partly restore the rate of profit. However, there are other factors at play in the capitalist mode of production which may counteract the tendency of the rate of profit to fall. Central among these are the intensification of labour exploitation, the existence of a surplus population and the reduction of wages below their value (Marx 1991, 339–48).
In the context of the Coronavirus pandemic, it is too early to say whether the ‘pandemic slump will create conditions where capital values are so devalued by bankruptcies, closures and layoffs that the weak capitalist companies will be liquidated and more successful technologically advanced companies will take over in an environment of higher profitability’ (Roberts 2020a). On the contrary, it is not too early to identify that capitalist states have already initiated the process of facilitating conditions of profitability by enabling the intensified exploitation of labour, answering in this manner the question of ‘who pays for the crisis’. The capitalist struggle for a profitable way out of the crisis goes through direct wage reductions and further deregulation of labour law to promote more flexible forms of employment (teleworking, subcontracting, piecework). It also goes through a sustained attack on social and political rights, with which bourgeois states are experimenting (Mavroudea s 2020).
Technology and political economy
We will now focus on one of these developments which perfectly captures the above needs of capital and therefore raises doubts as to whether it will remain a temporary by-product of the pandemic. We are referring to the practice of teleworking, the rise in which has been one of the main effects of the pandemic, with a resulting increase in measures of containment designed to address it. Teleworking refers to work that takes place anywhere and at any time (at home, on public transport, during rest or leisure breaks, etc.). A result of technological developments (Internet, hardware and software) which have made it possible, the practice of teleworking enables the employer, through the off-duty use of digital means of communication, to place the employee in a state of permanent availability.
In Greece, one of the first acts of legislative content (11 March) introduced to tackle the pandemic enabled the unilateral imposition of teleworking by the employer. This measure was presented as self-evident and was indeed celebrated initially by social media culture. It should be noted that teleworking has been one of the measures promoting further flexibility of the labour market strongly advocated by the European Union. According to the Commission, further flexibility, achieved through measures like teleworking, would ‘increase female participation in the labour market’, as well as ‘give workers more opportunities and choice to balance their professional and care responsibilities’ (EU Commission 2017). It has to be noted, though, that flexibility is only nominally aimed at countering unemployment. In reality, the goal is the reduction of labour costs through the intensified exploitation of a wider labour force. Part-time and temporary working arrangements, as well as teleworking, favour the inclusion of previously excluded elements in the workforce, so that the abundance of supply reduces the cost of labour.
Consequently, teleworking as a very flexible form of employment has been a constant demand of various groups of industrialists. Since October 2017 the Hellenic Federation of Enterprises (SEV) has expressed its views on the future of employment after the Memorandum, in a Special Report (SEV 2017). There it identified that further flexibility of working relations and the spread of atypical forms of employment (such as teleworking, crowdwork, zero-hours contracts, short-term contracts, on demand work, mini jobs, portfolio work, voucher-based work) is a conditio sine qua non for the ability of Greek enterprises to compete in the global environment. It is not surprising that industrialists see teleworking as an essential precondition for their competitiveness. A necessary characteristic of teleworking is the destabilization of two fundamental protective regulatory components of labour law: the dualisms of workplace–residence and working time–leisure time. The liquidation of these dualisms results in a space–time destabilization of work (Travlos-Tzanetatos 2019). This is an essential mechanism for the intensification of exploitation, as working time increases to overtake leisure time once work is carried out from the employee’s home, with employees finding themselves in a state of permanent availability for work.
Teleworking reveals itself as a mode of intensifying labour exploitation and therefore increasing capital’s potential to generate profits. The additional benefits of teleworking for capital include the reduction of operational costs and more importantly the taming of industrial action. Working from home precludes physical interaction between employees and raises significant obstacles to common articulation of demands, workplace organization and the collective struggle for common interests. We can add to these the detrimental effects on the psychosomatic health and safety of workers in the form of work-related stress, burnout syndrome, musculoskeletal disorders, and visual and mental fatigue due to the osmosis between working time and leisure time (Tavares 2017; Montreuil and Lippel 2003; Messenger et al. 2017; Vargas Llave et al. 2020). On this basis it is safe to argue that the practice of teleworking benefits the employer at the expense of employees’ health.
We arrive at the conclusion that a constant need for capital is reflected in the emergency legislation. The pandemic acted as a catalyst for the widespread application of teleworking as part of the policy of social distancing, but the justification for this practice extends beyond dealing with the pandemic if one takes into account various reports and studies conducted by capitalist groups and bourgeois political institutions. Intensified exploitation is a central factor counteracting the tendential fall of the rate of profit. The 2008 crisis facilitated the introduction of flexibility, namely aggressive policies of labour deregulation, in order to intensify exploitation as a profitable way out for capitalism. The Coronavirus crisis legislation continues along the same path.
Let us now turn to the last issue examined in this section, which casts doubt on the temporariness and socio-political neutrality of measures. This concerns the exponential growth of digital surveillance during the pandemic, such as through test and trace smartphone applications, data collection, data mining and algorithms predicting trends of disease spread. These and other technologies have been hailed as powerful allies in the battle against COVID-19 (Kritikos 2020; Goldsmith and Keane Woods 2020). At the same time, several objections have been raised and critiques have been put forward regarding the use of digital surveillance technologies, mostly from the standpoint of privacy and data protection (Sanders and Belli 2020; Burt 2020). Such critiques capture in its immediate form the core contradiction between technological development and the social context within which it takes place. However, it is important to move beyond the issue of privacy, which is a rather restrictive means of critiquing the growth of digital surveillance (Fuchs 2012, 35; Andrejevic 2013, 73).
In Greece, the government, through an act of legislative content (article 29 of Act 30.03.2020), proceeded with the establishment of a National COVID-19 Patient Registry for the purpose of improving the efficiency of epidemiological study. The data collected include the name, age, gender and health status of each patient, which is obviously sufficient to create a profile with potential legal effects (within the meaning of article 22 of Regulation 2016/679 on General Data Protection Regulation (GDPR)). An argument for the necessity of such a measure can be sustained, considering the need for a rapid and coordinated analysis of data to deal with the spread of a pandemic. However, the law goes beyond this and raises questions as to the socially necessary and beneficial nature of this measure. Paragraph 10 of article 29 invokes article 24 of Act 4624/2019, which implemented the GDPR in the Greek legal order, and provides for the processing of the Registry data for purposes ‘other than those they were collected for’. Although the same paragraph prohibits the processing of such data by ‘insurance companies and banks’, it is extremely problematic as it contradicts Guideline 3/2020 of the European Data Protection Board, which allows for the processing of health data only for the purposes of scientific research. It should be noted, though, that the most controversial case of personal data processing, with serious implications on the operation of modern democratic institutions, involved a company (Cambridge Analytica) which acquired such data in 2016 with the excuse of conducting research (Moore 2018, 55–71).
The pandemic has provided big corporations that engage in digital surveillance with the opportunity to solidify their position and erase the impressions from past incidents of malicious practice, such as the Cambridge Analytica affair. Facebook’s CEO has characterized the ‘ability to gather and share data for good’ as a ‘new superpower’ the world can use to combat the pandemic (Zuckerberg 2020). Before the pandemic, the US National Security Commission on Artificial Intelligence (NSCAI) was calling for public–private partnerships in mass surveillance and data collection in order to make use of this ‘superpower’ in the global digital competition with China (NSCAI 2020). The chairman of this commission, who also happens to be Google’s CEO, will also be heading another commission ‘to reimagine New York state’s post-COVID reality, with an emphasis on permanently integrating technology into every aspect of civic life’ (Klein 2020). It comes as no surprise, therefore, that measures which respond to constant demands of these digital corporations are actually endorsed on the occasion of the pandemic. For instance, both the UK and US governments have contracted with data-mining private companies – such as Palantir, the founder and investor of which was US President Donald Trump’s earliest Silicon Valley supporter – in order to consolidate government databases and build protective computer models.
These developments have been characterized as a ‘Screen New Deal’ and as ‘a coherent pandemic shock doctrine’ by Naomi Klein (2020). The pandemic is used as an opportunity for big corporations to rush into being a future of exploitation and surveillance: a future that
claims to be run on ‘artificial intelligence’, but is actually held together by tens of millions of anonymous workers tucked away in warehouses, data centres, content-moderation mills, electronic sweatshops, lithium mines, industrial farms, meat-processing plants and prisons, where they are left unprotected from disease and hyper-exploitation ... a future in which our every move, our every word, our every relationship is trackable, traceable and data-mineable by unprecedented collaborations between government and tech giants’ (Klein 2020).
One does not need projections of a dystopian future to grasp the socio-politically partial nature of developments in this field. It suffices to appreciate the importance of data for digital capitalist corporations. There have been various analyses which explore this issue. Shoshana Zuboff (2019, 8) has argued that ‘surveillance capitalism unilaterally claims human experience as free raw material for translation into behavioural data’. Data are declared as a ‘proprietary behavioural surplus’ by surveillance capitalists and are fed into the means of production of this new economic order, that is the advanced manufacturing processes known as ‘machine intelligence’ (8, 95–6). The result of this process is ‘prediction products’, which ‘anticipate what you will do now, soon, and later’ and ‘are traded in a new kind of marketplace for behavioural predictions’ called ‘behavioural futures markets’ (8). Through the extraction and selling of behavioural data surveillance, capitalists are increasingly intervening ‘in the state of play in order to nudge, coax, tune, and herd behaviour toward profitable outcomes’ (8).
The enormous benefits of digital surveillance for the processes of capitalist production and circulation, as well as for the profitability of capital, have been highlighted by Marxist analyses. Such critiques move beyond the one-sidedness of arguments rooted in privacy invasion. It is argued that the concept of privacy ‘does not do justice to the productive character of consumer surveillance’, whereby consumers are asked to pay for surplus extracted from their own work (Andrejevic 2012, 73). The focus thus needs to shift to political economy. Data are generated by platform usage and thus platform users create value, as their labour is objectified in ‘ad-space commodities’ (Fuchs 2016, 53–4). In its turn, targeted advertising revolutionizes the processes of circulation and realization of surplus value. Digital platforms and new media are crucial for the articulation of the consumptional capacity of individuals. The new digital information and communication technologies reproduce a social being whose capacities develop in line with the requirements of circulation (Manzerolle and Kjøsen 2016, 169). Last but not least, by radically increasing the velocity of capital and consequently decreasing the time of circulation, data extraction enabled by new media platforms has an impact on capital’s profitability. Because the sum and mass of surplus value created within a period is negatively determined by the velocity of capital, the faster capital moves through the sphere of circulation, the more surplus value will be created and validated (159).
Therefore, it can be argued that digital surveillance results from developing contradictions inherent in the capitalist mode of production, such as the contradiction between production and consumption and the tendency of the rate of profit to fall (Kivotidis 2020). The measures taken in this field during the pandemic correspond to such structural contradictions and exacerbate already existing trends (e.g. public–private partnerships, data concentration, data mining) while promoting well-established demands. In fact, the value of digital surveillance has now come to be recognized by bourgeois governments and international political institutions, such as the European Union. In a Communication to the European Parliament and the Council just before the COVID-19 outbreak, the European Commission set out ‘A European strategy for data’, recognizing the importance of data for the economy and society. According to the Commission, ‘data will reshape the way we produce, consume and live’. The challenges identified by the Commission for the EU to realize its potential in the data economy include the use of public sector information by businesses, the sharing and use of privately held data by other companies, the use of privately held data by government authorities and the sharing of data between public authorities (EU Commissio n 2020).
We conclude that the pandemic acts as a catalyst not just for the capitalist crisis but also for the introduction of measures to deal with its consequences. Determined by the capitalist relations of production, these measures aim to increase capital’s profitability by meeting long-standing demands of major capitalist corporations. This point is of great importance as it stands in sharp opposition to the dominant positivist perception of measures as temporary and technical. We saw above that the temporariness and apparent socio-political neutrality of the measures have been overemphasized by legal theory in order to downplay their expansive, political and class character. There are two problems with this narrative. First, there is the fact that emergency legislation tends to become permanent, especially in the context of dealing with an economic crisis (Kivotidis 2018). Furthermore, invoking scientific neutrality in order to justify the measures as unequivocally promoting the common good and public interest disregards the fact that the development of science and technology does not take place in a vacuum, but is instead embedded in a system of social relations. In this context their operation is never neutral but always determined by politico-economic considerations. Let us now examine the role played by the notion of public interest in this context.
Public interest and social need
The emergency form of the Coronavirus crisis legislation obfuscates the partially social content of the above measures under the cloak of public interest. This form of decision-making tends to depoliticize any process of decision making and, as such, constitutes an integral aspect of bourgeois legal ideology (Balibar 1977). The questions of how an economy should run or how to respond to a crisis are pre-eminently political. Emergency responses appear as ‘technical’ or ‘natural’, and definitely as not allowing for alternatives. In the context of the Coronavirus pandemic, the absence of political debate obscures the socio-political context which sets the parameters for the response. The role of capitalism in rendering public health systems incapacitated through decades of underfunding and privatization is ignored. Additionally, the role of capitalism in the origins of the virus’s spread, through the destruction of regional environmental complexity that keeps virulent pathogen population growth in check (Wallace et al. 2020), is not discussed.
The measures are presented as technical and their adoption as self-evident. Dealing with the pandemic, and especially its economic consequences, should not be subject to public deliberation but should be left to experts and scientists because it requires a high degree of specialization and technical knowledge. The fact that a large number of measures are based on technological developments strengthens this narrative. These measures are presented as self-evident, whereas other measures that might be more suitable or might hold to account those who have profited from the privatization of health care are not discussed. Social containment is self-evident, as is ‘working from home’. It is self-evident to continue working in warehouses or factories without asking if it is socially necessary that they continue operating. The need for pay reductions, furlough schemes and changes in working conditions are assumed to be self-evident because they are necessary to keep the ‘economy’ going. The question is: for whom are these measures necessary? It follows from the above analysis that they are not necessary for everyone. Some social strata benefit more than others. For some, not only are there no benefits, but these measures also usher in conditions of intensified exploitation and inevitable immiserization.
The above analysis confirms our hypothesis that some of these ‘exceptional’ measures are here to stay and exposes their class character as opposed to the narrative of neutrality and ‘common good’. At the same time, it highlights the role of relations of production in how productive forces are socially utilized.5 For instance, technological development makes it possible to work from home or to process personal data for specific social purposes. The pandemic acted as a catalyst for both of these developments. Nevertheless, the decisive motivation is profit. Of course, the technological development that makes teleworking possible also provides the possibility for jobs to increase by reducing socially necessary working time while maintaining a stable wage regime (Travlos-Tzanetatos 2019, 115). Similarly, regarding the processing of personal data, this could potentially contribute to the effective satisfaction and cultivation of social needs through their immediate identification. However, within capitalism these developments lead to technological unemployment, intensification of exploitation and degradation of the living standard of workers. This is the central contradiction. It should be noted, however, that, contrary to technophobic, neo-Luddite views, neither digitization nor general technological development by itself results in unemployment and increased exploitation. On the contrary, it is the relations of production that determine how productive forces are put into operation: in order to meet social needs or to increase capitalist profitability.
Moreover, relations of production ultimately determine the impossibility of a general interest in class societies. The fundamental and irreducible contradiction in capitalism between capital and labour entails the impossibility of simultaneously promoting the interests of the two opposing classes. Capital and labour as conditions of the capitalist mode of production are by definition opposite. Whatever one gains, the other necessarily loses. Each pole has an interest in increasing its share to the detriment of the other. The very concept of interest expresses this opposition and renders the term ‘general interest’ contradictio in terminis. In the context of the pandemic, the relations of production determine the class character and, consequently, the social partiality of the measures, which is obscured behind the abstract universality of ‘general interest’. Measures to tackle the pandemic, and in particular its economic consequences, prioritize the interests of capital, as opposed to the social needs of health protection, protection against unemployment, and decent living and working conditions. A comprehensive evaluation and critique of the measures taken by bourgeois governments globally to deal with the pandemic presupposes an elaboration of the concept of social needs.
Contrary to the notion of interest, the concept of need refers to something absolute. Needs are not weighted like interests or rights. Being ‘absolute’ means that the inability to satisfy any need necessarily affects the ability to satisfy the totality of needs. For example, the need for health protection is inextricably linked to the need for housing and food, but also for leisure, exercise, and so on. Dealing with the consequences of a pandemic in a capitalist society, however, necessarily entails a conflict between health and the economy, as well as a hierarchy of needs. This is due to the fact that satisfaction of social needs is not an end in itself in capitalism (Heller 2004, 49). On the contrary, the goal of capitalist production is the valorization of capital, whereas the satisfaction of social needs (on the market) is only a means towards this end. As Marx (1991, 253) put it: ‘the expansion or contraction of production are determined by ... profit and the proportion of this profit to the employed capital, thus by a definite rate of profit, rather than the relation of production to social needs, i.e. to the needs to socially developed human beings’. Capitalist society reverses the relationship between means and ends.
The immediate consequence of this reversal is the prioritization of certain needs over others. Since not every social need can be met, those that constitute existential conditions of the capitalist system are prioritized. In the case of the Coronavirus pandemic, it can be argued that the system’s need for expanded reproduction of capital, as mediated by the need for profit, has determined the form that health protection takes. Privatization and underfunding, combined with intensified exploitation of health workers as manifestations of the system’s existential need for profit, continue to determine the political response to the pandemic. Here, then, we can locate the absolute inability to balance, in capitalism, the need for health protection with the need for social welfare. In capitalist societies this balancing exercise translates into measures such as the suspension of employment contracts,6 the suspension of the employers’ obligation to declare any change or modification of the employees’ working hours,7 the suppression of democratic and trade union freedoms8 and the unilateral shift to atypical forms of employment.9 Employers have taken advantage of these measures to proceed with an avalanche of dismissals, unilateral imposition of unpaid leave and compulsory leave. On their part, the employees acquiesce to these ‘necessary’ measures with the Damoclean sword of unemployment hanging over their heads.
By contrast, from a social needs perspective, the need for protection from the virus as well as from the economic consequences of the pandemic would translate into measures such as: immediate and complete support of public health systems through recruitment of necessary medical and nursing staff and requisition of private units; provision of the necessary infrastructure to deal with the pandemic; necessary health and safety measures for all workers; absolute protection against redundancies and deregulation of employment relations; ensuring full pay for workers, even in industries that shut down; measures to support employees, such as additional paid leave for as long as is required to care for children or sick relatives; and prohibition of unilateral enforcement of unpaid leave by employers.
The opposition between health and economy can only be overcome in a socioeconomic system that recognizes the absoluteness of social needs and does not weigh them against each other. This is the only system, the guiding principle of which is the all-round development of human personality, that would allow the reorganization and redirection of production, as well as the utilization of all productive forces, including human labour-power, to deal with a health crisis. The absoluteness of social needs highlights the contradictions of the capitalist mode of production because it demands a direct attack on private property (through measures such as the requisition of private clinics or the breaking of drug patents), thereby contradicting its existential basis.
This chapter has examined several aspects of the legal response to the pandemic through the prism of a series of contradictions, such as between public interest and fundamental rights; health and economy; technology and political economy; and public interest and social needs. Legal positivism tends to view the measures as temporary and scientific, and as promoting the common good. They are therefore seen as legal and proportionate to the legitimate aim of protecting public health. On the contrary, a close review of the politico-economic content of prima facie technical measures, such as teleworking or data concentration and analysis, casts doubt on this narrative.
Instead we saw that the scientific response to the pandemic is in the last instance determined by politico-economic considerations, as prima facie technical measures in reality satisfy long-standing demands of specific social strata. The discovery of the partiality of economic incentives, and that profit making is the constant and underlying cause for the adoption and dissemination of such measures, sheds light on the ideological role of the notion of public interest which is invoked in order to depoliticize the response to Coronavirus and other crises. The chapter concluded with the adoption of a social needs perspective which is necessary in order to critically evaluate the measures taken to promote the salus populi in a capitalist society, as well as to imagine a society where the protection of public health can always be compatible with the promotion of social welfare.
Notes
1. The term ‘legal formalism’ is used here in a broad sense to indicate theoretical approaches to law as a closed system, which, even when they identify possible contradictions within the system itself, fail to engage with the socio-political and institutional contradictions that might influence the latter.
2. See, for instance, Hans Kelsen, one of the architects of legal positivism, whose conception of (legal) science is purified from the ambiguity of political concepts, which are amenable to distortions determined by political expediencies (Kelsen 1967, 71–191).
3. Article 31 paragraphs 2 and 3 of Act 4690/2020.
4. According to this theory, policies of fiscal spending funded by central bank money and running up budget deficits and public debt could take the economy towards full employment and sustain it (Roberts 2019).
5. This is a well-established point in Marxist analyses of technological development in capitalism. Such analyses point towards the contradiction between productive forces (ie instruments of production, machinery, technological development, scientific research, etc.) and relations of production (eg ownership of the means of production, wage relation, etc.). For instance, Karl Marx refers to the ‘economic paradox’ of machinery in capitalism, which, despite being ‘the most powerful instrument for reducing labour-time’ in the context of capitalist social relations, ‘suffers a dialectical inversion and becomes the most unfailing means for turning the whole lifetime of the worker and his family into labour-time at capital’s disposal for its own valorization’ (Marx 1976, 532). We argue that this contradiction is key to grasping how politico-economic considerations determine the scientific response to the pandemic.
6. Act of Legislative Content 20.03.20, article 11(2).
7. Act of Legislative Content 11.03.20, article 4(1).
8. Act of Legislative Content 20.03.20, article 68(2).
9. Act of Legislative Content 11.03.20, article 4(2).
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