Chapter 11
Pandemic, humanities and the legal imagination of the disaster
Introduction
No matter the origin of the event, human or non-human related, consequences are always a problem of human responsibility. From this perspective, catastrophes are epiphanic events, as they reveal how our laws work, what values they protect, the shortcomings of any order of regulation and if they are successful in protecting us from vulnerability in the global arena of risks. But all catastrophes – and pandemics are no exception here – contrary to an old belief, are not ‘big levellers’, but rather are extraordinary magnifiers of injustice. In a globally interconnected world how can law protect some without injuring others? How is it possible to limit the infectious body without expelling it into a void of rights denial? In which ways will it be possible to protect an idea and practice of public space in the urban environment? How much of this discussion should be placed in dialogue with the climate change transformation and the legal meaning of the Anthropocene?
Given this theoretical background and these questions, in this chapter I will explore several works of literature that seem to have been absent from the public discussion and debate. These include Jack London’s The Scarlet Plague (1912), in which mankind’s vulnerability is dramatically exposed by an (almost) human extinction in a world that was already based on discrimination, and in which the plague renders everybody vulnerable without advance warning.
Another useful source for discussion is J. G. Ballard’s numerous attempts to describe the fall of the world in The Disaster Area (1967), where he is extraordinarily successful in illuminating how the disaster is already among us and our infinite cities. Finally, I turn to the magnificent Beasts of the Southern Wild (2012), a dramatic movie in which Hurricane Katrina’s disaster is seen through the eyes of a community displaced yet reluctant to leave their place. The film brilliantly shows how each regulation encompasses a fragmentation of the legal subject: as represented by the levee, law excludes and protects in a contradictory way, especially those at the margins socially, geographically and ecologically.
Thinking pandemics through the humanities and the imagination of the catastrophe
As I propose to understand the term, catastrophes are sudden breakdowns from the normal status of things. They break down the world, such that it cannot exist in the same way in the aftermath of the event, or it may be very likely to not exist at all. When the COVID-19 pandemic hit the world, the most immediate social framework for understanding such a rupture was conceiving it as a disaster (Hagen and Elliott 2021, 2). The popular song ‘It’s the End of the World as We Know It (And I Feel Fine)’ 1 became a very apt description of the reality which the world, with different degrees of intensity, was experiencing.
Especially in media discourses, COVID-19 has been represented as a great leveller, with similarities traced to past epidemics, such as the Black Death in the Middle Ages or the Spanish flu in the aftermath of the First World War. This is also the case with catastrophes when they are represented as unpredictable events or Acts of God, with which human responsibility has little connection. Despite this common locus standi in public discourse and mainstream media, disaster studies have long since advanced to the point that it is recognized that there is no such thing as a natural disaster. Physicalist and technique-led approaches to disasters have proven to be a limited theoretical framework for understanding why an event becomes a disaster and explaining the magnitude of destruction (Blaikie et al. 2004). Exposure to risk and social vulnerability show that context matters, and no individual or community is comparable to others before extreme events occur (Fassin 2020).
It is possible to find a similar framework for making sense of the importance of the social dimension of what makes COVID-19 the deadliest pandemic of our lifetimes. In medical anthropology this approach was first advanced by Merrill Singer, when he proposed the term ‘syndemic’ to highlight the complex medical and clinical conditions that, far from being simply a comorbidity situation for the individual, namely the presence of more than one pathology or disease, were influenced by various factors. The syndemic approach showed how biological and social interactions are important for prognosis, treatment and health policy (Singer et al. 2017). These interactions show that a health strategy must also take into consideration the crucial factors of socioeconomic inequalities when seeking to regulate both the spread and the distribution of the heaviest consequences of a disease. As has been stated, ‘the most important consequence of seeing COVID-19 as a syndemic is to underline its social origins’ (Horton 2020, 874). Even within a framework that recognizes the syndemic nature of the actual crisis, it has been argued that context matters greatly (Mendenhall 2020).
In many respects the COVID-19 syndemic revealed what we already knew about many things and the state of affairs of this world. Ecological degradation, the consumption of natural resources associated with economic activity and the consequent climate change, while not direct causes of this global threat, have been linked to the factors that make it possible for the virus to reach human populations with the consequences which we all are still facing. In any event, none of this was entirely unforeseeable or unexpected. Authors have warned about the spillover potential of viruses as something to worry about (Quammen 2012), as well as avian flu and SARS, which have been identified as epidemic diseases capable of turning into something bigger and deadlier (Davis 2020).
Catastrophes have the potential to reveal a great deal and in different ways. I will identify three ways that are relevant for this chapter. First, from an abstract point of view, they make visible as a phenomenon what before the event was just a projection of abstract thinking: they make visible what was or still is invisible or only partially invisible. In the ecological ‘reading’ of the COVID-19 pandemic, this has allowed us to finally start to realize how the consequences of the Anthropocene – the era of the earth in which mankind has become a geological force – is becoming much more difficult to ignore at all levels. It announces a possible future, showing at the same time the critical danger from which we need protection and the possibility for a radical inversion of our business-as-usual lifestyle (Latour 2021). It has also helped to show the ways in which a tipping-points approach can be epitomized by such an event (Horn 2018). The ‘problem’ with climate change is that it is happening slowly but constantly, even if intensity and speed are dependent on many factors such as geography, space, time and social position. As a consequence, it is more difficult to visualize the danger we should be ready to act against.
The second revelation of the catastrophe lies in showing that what was thought to be impossible, beyond any risk calculation, unthinkable and unimaginable, in fact has just materialized as a catastrophic event. This is the case especially with technology-related disasters. This point can be made clearer by recalling a story told by Nobel prize-winning writer and journalist Svetlana Aleksievič. In a new preface2 to her stunning and dramatic account of the Chernobyl disaster of 1986 (Chernobyl Prayer) she remembers having been a visitor to the Tomari nuclear power plant on Hokkaido island in Japan. Talking about the Chernobyl disaster, technicians were certain that such a failure would not have been possible there, as the structure was designed to resist earthquakes of magnitude 8 on the Richter scale. They could not know at that time that in 2011 a terrible earthquake of magnitude 9, the first in Japanese history, would produce a tsunami that would eventually hit Fukushima’s nuclear power plant. The two events, in an unfortunate conjunction, led to one of the greatest nuclear catastrophes in human history, both in terms of persons impacted and in terms of environmental nuclear contamination. This story underscores that in order to be able to prevent something or protect from it, it is necessary to be able to imagine it, to be able to conceive it, no matter how unlikely or impossible such an event might seem. It is the imagination of the catastrophe that prepares us to face it. Such a mechanism may show how even the contested principle of precaution can work in social sciences only under certain epistemological conditions (Dupuy 2002). Interestingly, at the very beginning of the report issued by the Independent Panel for Pandemic Preparedness and Response (2021, 4), COVID-19 is associated with the Chernobyl disaster. According to the report, the association is made because both a pandemic and a nuclear accident entail the responsibility to protect, especially on the part of those in charge of the institutions and governments that every catastrophe dramatically puts under stress. Without preparedness – being able to imagine the worst-case scenario – it is the capacity to respond that is undermined.
The third way in which a catastrophe is revelatory is by bringing us nearer to the perspective of the end of the world as a measure of human existence. This is an anthropological pattern in human society that is experienced in very different ways according to different societies and cultures. The anxiety regarding the end of the world, according to Viveiros de Castro and Danowski (2016), is typical of the separation between humankind and nature that is so deeply embedded in the Western tradition of looking at the world as something shaped by humans, rather than as an ecosystem of coexistence between different species.
While I will not engage directly with these debates, they all demonstrate how the complexity of the interaction between the pandemic and the ecological crisis implies an attempt to use all cultural means available in order to make sense of the disaster. They also show what the most recent approach to disaster studies has tried to bring to the fore: disasters are not only breakdowns of the normal situation but also ongoing parts of the social reality. In times of ecological permanent crisis, this could not be more evident. The actual rhetoric of being back to normal life just ignores how this ‘normal’ was already a social domain in which some experienced ‘normality’ in a very different way to others. Thus, disasters must also be studied for ‘what they do in the social world’ (Hagen and Elliott 2 021, 5).
If catastrophes are moments which take the form of the structures that give sense to our suffering (Neiman 2002), they belong not only to the realm of the unknown event that comes to shake the world, but also to a complex cultural appropriation that is tied to the symbolic medium (Walter 2008). In other words, extreme events are inextricably tied to our cultural lives. So it is not surprising that apocalyptic and disaster-based novels offer an analogous array of elements useful for the social and legal imagination. They structure how societies represent themselves and shape ‘reality’ (Horn 2018). Exploring this perspective during pandemics, literature, movies and art in general constituted a fertile reservoir of social imagination. The variety of works of art is infinite and deeply context-dependent: everything from Boccaccio’s Decameron to Dan Brown’s Inferno, via Camus’ The Plague and Saramago’s Blindness, as well as an array of movies of which Contagion has been one of the most mentioned. Of course, epidemics have long been a subject of art in general, and especially for literature. Even in times of highly influential web-based interaction and social networks, the function of these pieces of art is common: they help in making sense of a world that has been deeply shaken in its usual features. They are a powerful tool that helps us to understand our social imagination in depicting fictional catastrophes or making sense of real ones. It is debatable whether literature can effectively help in preventing catastrophe rather than fostering reflection on our ethical relationship with a world in which catastrophes now occur often (Lavocat 2016, 26). The humanities challenge and strengthen our understanding of extreme events because, exactly as the events they evoke and describe, they illuminate the needs and perils, attitudes and beliefs of a community in the face of something that can put an end to its very existence. At the same time, we cannot take for granted how catastrophes are culturally relevant for the humanities. Any exercise of this kind must be confronted with its own limits. It would be unrealistic to ask too much of the humanities. Taking the example of literature and the form of the novel, Amitav Ghosh has argued that the difficulty lies in putting natural forces and events that we thought improbable at the centre of a narrative plot: a modern novel normally hides such events, while the actual deepest challenge is how to imagine what is unthinkable in our era (Ghosh 20 17, 33).
Looking at the relationship between law, culture and the humanities and the pandemic situation as intersections of different possible cognitive approaches, I will use literature and movies as pieces of art that are related to extreme events to question how they can contribute to normativity in disaster times. Imagined catastrophes are exceptional situations for decision making, both individually and collectively (Horn 2018, 12). They are relevant in helping to frame the social ties in which law and disaster take place and are enforced, and how the dynamics of this illuminate many social facets of the ties between the pandemic situation and the law.
How do we think about law during a pandemic?
In this section I question how we conceive the role played by law and its function during an event like a pandemic. Once again, this has many aspects that resemble the function of law in a catastrophe. I will refer here to the theoretical analysis of Roberto Esposito, a philosopher considered one of the main representatives of the so-called Italian Theory.3 When, in 2002, he wrote a book entitled Immunitas that dealt with the relationship between the protection of life and the social paradigm of immunization, he certainly did not foresee the pandemic that would hit the world almost twenty years later.4 This work, together with Communitas (1998), in which Esposito argued about the relevance of the munus for the understanding of the community, and Bìos (2004), in which he considered the notion of biopolitics, have been praised as an original attempt at understanding the relationship between community and biopolitics, as well as the different philosophical and political dimensions of institutionalism (Esposito 2021). In Immunitas, the Italian philosopher investigates how life can be protected from what it negates only by means of a further negation (2011). In this audacious philosophical attempt, he scrutinizes how immunization has become an epistemological, social and scientific paradigm strictly linked to the development of modernity. As in most of his works, law here plays an important role. It is the law that assures the immunization: ‘law ensures the survival of the community in a life-threatening situation [and] ... seeks to protect the common life from a danger that can be seen in the relation that makes it what it is’ (28–9).
Deploying Esposito’s insights regarding the deep link between law and the social process of immunization, it is also possible to establish a connection to how law functions during a catastrophe. If the ultimate goal of the law is that of assuring the survival of a community, the parallel with the disaster situation is immediate. Esposito helps us to think about the role of law and legal regulation during pandemic times. If we establish a link between the protection of the community and the role played by law, the immunization paradigm provides protection from the relationship that makes a community in a social sense. At the same time, the law tries to suppress, to a certain extent, these relationships in order to protect life from itself. This is exactly what happened during the lockdowns that most of the world has faced during the last year and a half. On the one hand, if the lockdown imposed by law was a necessary measure, especially during the ‘first wave’ of the spread of the virus, many nevertheless asked how much obedience to the law was bearable, not only in terms of health measures but also for social relationships that involve survival itself: that is, to have the possibility to work or to live a life with enough social meaning, that was opposed, sometimes in caricatural terms, to mere biological life. This also has sacrificial characteristics, as the ultimate goal of law is the conservation of life (Esposito 20 11, 39).
When dealing with the role of law in an emergency or catastrophe, it seems that an emergency is a situation outside the law or where law has little to regulate. However, for a long time the issue of catastrophe has attracted very little attention from legal scholars and doctrine. Hurricane Katrina in 2005 was a detonator for reversing this situation. It resulted in a ‘Katrina effect’ that had consequences particularly for the anglophone world, and the unfortunate increase in the occurrence of extreme events has attracted much more attention from legal scholars ever since. Catastrophe plays a double role in its relationship to law: it shows law’s failure but at the same time it is the reason for its invocation (Delmas-Marty 2012). Exactly as with the mechanism of immunization invoked by Esposito with reference to the link between law, life and protection, catastrophes offer a double movement of affirmation and negation of the law: a kind of Janus-faced relationship with law (Douglas et al. 2007, 4). Catastrophes are ‘ […] moments when we confront the limits of our normative world’ (Meyer 2007, 20).
Nevertheless, the ‘ordinary’ law enforceable during normal times does not vanish: as a protection from undesired consequences of catastrophes, it reveals how the immunization paradigm is at work in different situations. When, for example, people in extreme existential threat are obliged to trespass or steal due to necessity – a justification for illegal acts that has existed for centuries – and are treated by the law as looters, the idea of immunization appears. That is, ordinary regulation is applied in an extraordinary situation that is not recognized by the law as such. This serves an ideal of continuing the process of ‘normality’ in an ‘abnormal’ situation, where the subversion of the order of the catastrophe is negated. According to Émile Benveniste (2016), one of the etymologies of the word ‘survive’ is to survive an event. COVID-19, like all disasters, certainly is an event. However, unlike most disasters its temporality is fluid, as we do not know when and how this process will eventually end (even if we know that most pandemics can be declared over at one point or another). In the next section, with the help of literature, I will show how an event such as a pandemic can completely change the social world we inhabit: how it is possible to make sense of it and at the same time how much loss is inevitably involved in such a process.
London’s Scarlet Plague: the end of the world as we knew it
The first example of a novel through which I want to elaborate upon these themes is The Scarlet Plague (1915), a short story written by Jack London and published for the first time in 1912. The story is set in 2073, sixty years after a global pandemic reduces humanity almost to extinction. The narrator is an old man, Granser, one of the few known survivors who is still able to remember the world as it was before the coming of the plague. The disease that affected the world imagined by London is an invisible illness about which the unfortunate inhabitants did not manage to gather much knowledge. It spread suddenly and in unpredictable ways, dooming its victims to quick death by suffocation, the only mark of it being a series of scarlet pustules appearing on the face of the infected subject when their fate was already determined.
London set his story in a world structured around fierce discrimination between people. In a way, the story depicts a world where law does not seem to be useful anymore, a kind of return to the state of nature where law no longer protects as it did before the spread of the plague. The Scarlet Plague introduced the genre of dystopic fiction, which was anticipated by Mary Shelley’s The Last Man (1826), in which the survivor was the sole person in the entire world. London also anticipated the worries of an overpopulated planet, a topic that was developed in another short tale published just two years earlier, The Unparalleled Invasion (1910). The Scarlet Plague, while it may not be the best literary representation of London’s work, proved to be extraordinarily prescient: the Spanish flu would strike and kill its many victims just a few years later.
One of the themes underlying the work is how survival does not make sense when a civilization is about to collapse, sweeping away the social world in which one had a place before. It does not matter that such a world was already inhospitable for many due to the iron laws of market competition and discrimination, as London depicts it. A socialist by political credo, London seems to blame a certain capitalist way of exploiting nature as the ultimate cause of the appearance of the plague (Riva, Benedetti and Cesana 2014). The society that was flourishing before the plague was one in which a small number of people were controlling a large amount of the available wealth. Younger and older generations do not share the world anymore, and this creates a society in which there is no communication between them. The younger generation to whom the old man tells his story is also profoundly lacking in education: the story is orally recounted, as the young are illiterate. The oral narrative is recalled as the only way in which knowledge is shared.
Describing the collapse of civilization, London also shows how normative meaning disappears in a kind of return to a state of nature where law neither protects nor discriminates anymore. For example, relationships between persons are now dominated again by physical violence, as shown in a passage of the story in which a woman is treated as a mere object of possession of another man younger and stronger than the narrator Granser, who describes a situation in which all of his social capital has disappeared. Does London make us think about the meaning of survival in an apocalyptic context? Is survival everything, as people often think at a certain point in a difficult time, such as during a peak of the COVID-19 pandemic? Furthermore, based on London’s insights on the disaster scenario, in the end is there such a ‘thing’ as a right to survive during an extreme situation such as a pandemic or a catastrophe? Surviving makes much more sense when the civilization to which we are accustomed stays the same, in a kind of return to the normal. The main character of the story survives the pandemic but loses most of his links to the life he lived before. This is also due to the loss of a position of superiority in relation to others, as a university teacher belonging to the upper class (Rossetti 2015). The return to a kind of primitive state erases much of his social status, which was backed by legal and social norms available to him. London vividly depicts the end of a world as he knew it.
London’s talent not only virtually gave birth to the genre of apocalyptic literature; he was also one of the first writers to deal with complex themes such as the relationship between science, knowledge and social organization, as well as inequality and overpopulation. For the purposes of the argument of this chapter, what matters most here is that London was also able to imagine how the idea of surviving through such a deadly event was really surviving an event. However, survival as an end in itself seems a goal of limited desirability. When an entire social world collapses, there is little left to do in a present without a future, as the grimy circumstances of Granser show us.
City air makes you infected: disaster in the city through Ballard’s eyes
As with all epidemics, COVID-19 strikes cities and the urban environment most fiercely. While the virus can be everywhere, obviously it is spread by people, and most people worldwide now live in cities and their environs. In fact, 60 per cent will live in cities by 2030, according to UN-Habitat predictions (2020, 305). The link between epidemics and the urban dimension is well known. COVID-19 has been able to shake many established assumptions and much of the rhetoric regarding cities and their characteristics. Many debates and reflections on the urban dimension have been tested during the pandemic. Density, for example, a common and desirable feature of the urban environment, suddenly became something to be feared. The denser a place, the more contagious the virus would prove. Thus, any congregation of people, even the informal ones so typical of urban life, quickly became dangerous. This has produced other phenomena such as that of ‘quitters’, those typically upper-middle-class professionals (other than medical professionals) able to work remotely, who abandoned the city for the countryside, far from the contagion. Mass touristification and gentrification, with their impact on housing affordability worldwide, came to a stop. As a consequence, some cities appeared unlike how they had looked in the past fifty years, Venice being a typical example of a city completely transformed by the absence of tourism.
Notwithstanding the overwhelming literature on them, cities are still very difficult to define. Nevertheless, most would agree that a city without people is not only unattractive but a contradiction in terms. COVID-19 emptied cities, making them look like a De Chirico painting, where nobody is in sight and the space of the urban is usually suspended. A city without people is a kind of ghost town, as the Rolling Stones (2020) sang during the initial lockdown. Interestingly, Deyan Sudjic (2016, 208) defined a curfew as ‘the most anti urban act possible’ apart from physical destruction of a city. But during the COVID-19 pandemic we have been obliged to become accustomed to a completely different urban scenario. All through 2020, and sometimes even during 2021, the antivirus measures have emptied the cities, restricting circulation for many, but not for all. What has been experienced through legal restriction is a kind of pandemic legal proxemics. Proxemics is a term coined by social theorist and anthropologist Edward Hall, which he used to indicate the study of the relationships between space, culture and the individual. Particularly in The Hidden Dimension (1966), Hall showed how the place we occupy in space and the different distances people interpose between each other are cultural matters. That is, some individuals and communities will tend to distance more or less than others. Fairly absent from public debates, proxemics can be a key concept for investigating how COVID-19 has produced normativities that have had a major impact in reshaping our relations with space. The logic of immunization is again at work here: law obligates us to protect, to protect from the other, from other individuals, from everyone and no one, because each living body could be contagious. Even material objects located in the city or in its infrastructure, such as the public transportation system, can be a vehicle of infection. The result was that the living space of a city, which is grounded in the interaction of different persons – at least in its noble version – stopped making sense. In its place there emerged a spectral urban landscape where each physical presence was placed under precise legal scrutiny. For example, Italy was the first Western country to be affected by the disease at a time when information regarding it was still scarce. Its red zone provision, which limited freedom of movement, initially in certain cities or regions and later across the entire country, imposed a curfew during specified hours. During the most intense period of restriction, even going outside the home was subject to enforceable rules and required legal justification. This paved the way to a pandemic legal proxemics, including social distancing between persons (1.5 metres), between persons and places (for example, being allowed to go for a walk in prossimità to one’s home) and between family members (the ambiguous legal term congiunti, which regulated the number of people authorized to gather around a table). Different rules determined how people should move and act across different kinds of space – public, social, intimate or familiar – and no place was outside the law of the pandemic. All of the rules had the shared goal of putting each individual in a specific place from where they could be legally distanced.
Thus, the pandemic showed again what we already knew: that there is a link between immunity and a sealed space. According to Peter Sloterdijk (2016), from an immunological point of view, a dwelling is a defence measure that allows an individual to define a zone of well-being against invaders and carriers of disease. The home represents the form through which the relationship between immunity and the sealing of space comes into being. It makes clear the fact that human openness to the world always corresponds to a complementary attitude that avoids it. In this way, the relationship established between density of people and urban life seems completely overturned. These intuitions from a provocative thinker such as Sloterdijk lead us to the second writer to whom I want to refer, namely J. G. Ballard (1930–2009). Ballard, a British author of dystopian novels, is one of the few writers to share the privilege of having his body of work come to be associated with a new adjective, Ballardian. His best-known works have been transposed to cinema by celebrated directors: Empire of the Sun (1987 by Steven Spielberg), Crash (1996 by David Cronenberg) and High-Rise (2015 by Ben Wheatley).
Even if a sense of anguish permeates his entire aesthetics, Ballard did not attract much attention during this pandemic. A critic of the absurdities and psychosis of modern life, Ballard mastered the ability to recount the sense of disaster, for example in The Drowned World (1962), as well as an acute urban sensibility for how city spaces interact with individuals and their behaviour. Here I focus on a short story, entitled ‘The Concentration City’, initially published in 1957 (Ballard 1967), and a better-known example of his milieu, High-Rise (1975). In these notable works, Ballard, who showed an interest in the urban dimension many times in his literature, is able to establish a relationship between disaster and the urban in both ordinary and imaginative ways. ‘The Concentration City’ is an obscure short tale in which the main character, M., is trapped both temporally and spatially. Except through the retelling of a myth about its foundation, it is simply not possible to escape the city. There is no world outside the city because the city is infinite; there is no space outside of it, for it is the beginning and the end of all possible worlds. Free space is considered a contradiction in terms within the story. But not all spaces in such a city are pleasant, as dead spots and neighbourhoods are slowly expanding. The city, being infinite in this way, can be depicted as being a disaster in itself, as Paul Virilio noted some years later (2007).
In the successful novel High-Rise, Ballard tells the story of a condominium outside London, which could be described as a ‘gated community’. Little by little, life inside the building starts to acquire more importance than what happens outside, as the inhabitants lose interest in all activities beyond the complex, including their jobs, while their entire lives are slowly reframed. The condo is used by Ballard as a kind of microscopic observation of how social life can slowly but inexorably deteriorate, ending in a kind of state of nature in which everyone is simply concerned for their own physical protection. The condo is a normative micro universe set apart from the world and its fate where, in the end, everything collapses.
In these works, Ballard warns us that the disaster is already among us, even if we are not able to see it and even if we are actively contributing to it. Furthermore, the disaster is a typical urban problem. Ballard’s characters do not seem to fight against the disaster; rather, they just accept it as part of their inner life experience (Orr 2000, 481). These intriguing pieces of literature also highlight the normative potential of cities and urban spaces to challenge state-based legal and political order.
Ballard’s writing has not attracted much attention within the law and literature field of research that is now well established (with the exception of Gray 2019). Nonetheless, his aesthetics have an important normative, if not a legal, meaning. Ballard demonstrates how the social order can end up in a very different place from what is expected in modernity. This is especially relevant in High-Rise, where neither legal regulation, nor municipal intervention, nor police order seem capable of noticing, much less preventing, what is happening inside the building. Here, the double role of space and law as immunization can be highlighted as a marker for what has happened during the COVID-19 pandemic. While most people were obliged to seek shelter inside their homes, many of those homes in turn were transformed into places of tense relationships. Finally, those without a home were often simply not contemplated by the legal pandemics proxemics – how does a homeless person stay at home? This confirms Sloterdijk’s (2016) insight that the house is first and foremost a protection from the outside world but, as the immunization paradigm and Ballard’s urban nightmare show, it cannot fully protect from the dangers that are inside the domestic space.
The right to survive in Beasts of the Southern Wild
In 2009 the international NGO Oxfam International issued a report entitled The Right to Survive. The Humanitarian Challenge for the Twenty-First Century.5 The report focused on humanitarian assistance in the context of the drastic rise in the number of extreme events globally and their impact upon people. Years later, the ecological crisis and the COVID-19 pandemic together prove that the report was all too prescient. For my purposes, of particular relevance is the report’s title: Right to Survive. What exactly does it mean in legal terms? Is this right to survive something different from a right to life enshrined in many international law documents, such as article 2 of the European Convention on Human Rights? I want to understand this conceptual dynamic through its beautiful and, in many ways, tragic portrayal in the movie Beasts of the Southern Wild (2012), directed by Benh Zeitlin and adapted from the play Juicy and Delicious (2012) by Lucy Alibar. The film had considerable success for an independent enterprise, gaining four Oscar nominations and winning several other awards, including in the special prize section at the Cannes Festival 2012 and the jury award US Dramatic at the Sundance Festival.
The story, somewhere between reality, fantasy and flashbacks, deals mainly with the figure of Hushpuppy, a six-year-old girl, who lives in the Bathtub, a peculiar community of people in South Louisiana behind a large levee. There she lives with her father Wink, who finds himself sick but refuses the treatment offered outside the Bathtub. Escaping from the hospital, he tries to make Hushpuppy aware of the fact that he probably will not survive much longer and begins to instruct his daughter on how to survive without him. As a consequence, Hushpuppy tries to find her missing mother while suffering the idiosyncratic behaviour of her father. The story is resolved on the other side of the tub. Meanwhile, the climatic situation is deteriorating and a big storm is about to hit the spot, leaving the entire community to face a difficult choice: abandon their modest houses and possessions or face the possibility of death. Most of the community is very reluctant to leave what seems not only a place in which to live but also a kind of lifestyle apart from the busy modernity on the other side of the levee. Hurricane Katrina clearly inspired the entire story, especially in the adaptation from the theatre to cinema. The film is not only a touching story of love and separation between loved ones, as is the case with Hushpuppy and both parents (one dying, one long since missing), but also a beautiful representation of the right to survive. Also, Hushpuppy is a very special subject trying to find her way in a world that is falling apart around her. Not only is she a small child who needs to make decisions (including to leave her father at some point) that are overwhelming for someone at any age, but she also acts in a social world that seems to be excluded from the ‘other world’, the other side of life marked by the levee which is increasingly unable to protect the community.
Beasts of the Southern Wild also offers an interesting postcolonial (Barnsley 2016) representation of the right to survive in marginal communities, and how this changes its social meaning through experience. What kind of survival makes sense and to whom? Both Hushpuppy and Wink, her father, do not fit in any of the categories in the ‘disaster preparedness’ paradigm, nor does the rest of the community, reluctant as they are to abandon the Bathtub. This is not because they are unafraid of the incoming catastrophe but because they know there is no social place for them outside the levee. The analysis of Evans and Reid, critical scholars who work between political philosophy and international relations, is particularly illustrative of this mechanism of theoretical inversion. They state that ‘[a]s such, the game of survival has to be played by learning how to expose oneself to danger rather than believing in the possibility of ever achieving freedom from danger as such’ (Evans and Reid 2013, 83). In short, the subject is immersed in a sea of uncontrollable risks from which she is doomed to no longer emerge, and vulnerability becomes her specific condition. Returning to the hypothesis I initially advanced of an epiphanic character of the catastrophe, the concept of subjectivity allows us to affirm the idea of an ecstatic subject. This is the non-passive product of the opening of an exceptional space created by the catastrophe, which confers reality and makes the disaster event itself meaningful. The catastrophic subject, from a juridical and political point of view, is then an eccentric, elusive subject, whose production and appearance is in some ways the true measure of confirmation of the catastrophic situation in progress (Miller 2009). Proof of this can be found in the variety of legal conformations that subjectivity can concretely assume. From the looter being threatened with being shot on sight to the environmental refugee who has no choice but to flee (although it is not possible to recognize refugee status exclusively for environmental reasons), all these subjectivities, in their ontological exposure to risk, are in reality exclusively committed to surviving. The relationship between exception and catastrophe in the legal field then takes on the uncomfortable and often painful contours of the failure of the law, as it concerns the inability of the law to provide protection to the most vulnerable people (Verchick 2010, 128). As Katrina showed us years ago, and Beasts beautifully crafted on the big screen, the state can easily fail to assure protection to certain kinds of subjects rather than to others.
Stories like the one depicted by Beasts also offer ethical challenges that arise during disaster time. Hospital assistance, allocation of resources during triage and the possibility of having to choose between different possibilities for people to survive have all been well documented during the pandemic. Ethical and moral problems, rather than disappearing during COVID-19, have been enhanced by the struggle for life in the exceptional space opened by an extreme event. It is more likely that a tragic choice will have to be faced during such an event rather than in normal times. This represents another limit of the law during pandemics and disasters. An absolute juridification of all social actions during emergency situations is completely at odds with the necessity for quick and rapid action, both in terms of humanitarian assistance and health services. But in fact the world has faced the absence of clear guidelines as to the allocation of scarce resources in terms of assistance – an example could be the mad dash for pulmonary ventilators by states at the outbreak of the pandemic. The double face of the law during disaster appears again here: negation and affirmation at the same time. What Beasts of the Southern Wild helps us to think about is the idea that the right to survive is not the same for everybody, and sometimes it is the reasonableness of having such a right which comes to be questioned in liberal legal regimes.
Some provisional conclusions
The parallels explored above between disasters and the COVID-19 pandemic help to show how law functions in similar ways in these difficult contexts of the production and application of legal materials. From this point of view, it is the law that makes visible the exclusion and the excluded. Space has claimed again its importance, as we have seen that the physical domain, the coexistence between people and its intrinsically dangerous features immediately became the preferred domain of legal regulation. The physical space does not disappear even if the legal proxemics empties the city. This has been highly visible in urban space, where another kind of city emerged: transparent, deserted, supervised, decent, safe, non-infected and non-conflictual. All these adjectives describe this compulsory idea of the city we have become accustomed to during this period. Indeed, we are still trying to understand how the urban will look beyond the pandemic.
What this global health crisis has also shown is that the presence of the state has regained attention after decades of debate on state-weakness in the global arena. This analysis needs to be applied cautiously, not only because it is highly dependent on the globalization and interconnection processes from which the debate mostly emerged, but also because not all states are equal or weak. For example, China and the United States of America seem to have emerged stronger from the pandemic. Other countries have shown their vulnerabilities both in institutional and social terms.6 As for the disaster context, it is hard to say if the state, for example in the context of the European Union, will continue on this trajectory of regaining regulatory force. As a corollary of the return of the state, the pandemic has clearly demonstrated the need to re-establish the centrality of the social dimension, together with the importance of social infrastructure, national and local health services, and the value of proximity in the provision of services (with the exception of digital services).
I hope that I have illustrated how the humanities are a valuable tool for imagining alternative legal meanings, inspired by the disaster theoretical framework. The collapse of the social world is what brings together London’s attempts at rethinking the world after the plague, with Hushpuppy’s efforts at finding her way to survive the disaster. But Ballard’s highly original treatment of the theme highlights that the disaster is a condition of existence and not only a space of exception. It is only by imagining the catastrophe that we will be able to overcome it. The Coronavirus and climate change crises are perfect examples of this needed exercise, from which law and legal studies have much to learn.
Notes
1. US rock band R.E.M. released the song in 1987 on the album Document.
2. The English-language edition seems not to have included this additional piece of writing by the author, dated March 2011. Here, I refer to the Italian edition of the book published by E/O, Rome (2002).
3. The term loosely indicates a certain philosophical style associated with Italian authors.
4. Esposito has recently tried to combine his work on institutionalism with the issues emerging from the pandemic situation (Istituzione 2021).
5. Available with updates at https://www.oxfam.org/en/research/right-survive.
6. Brazil could be the best example, with President Bolsonaro’s highly contested management of the pandemic.
References
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Legal sources
European Convention on Human Rights (Rome, 4/ November 1950, in force 3 September 1953).
Artworks
Rolling Stones (2020) ‘Living in a Ghost Town’. Single: Polydor.
Zeitlin, B. (2012) Beasts of the Southern Wild. USA: Cinereach Production.