Introduction
Background
As I write this introduction, it has been just over two years since we became aware of the existence of COVID-19, which was followed by a growing realization of the extraordinary impact it would have on all of us. Throughout the pandemic – but particularly in the early phase – the scale of the legal response to the disease would have been previously unimaginable. Whether through ‘stay at home’ orders, the closing of businesses and schools, the furlough scheme, the moratorium on housing evictions, the curtailment of public procurement requirements or the development of online courts, every aspect of society was forced to adapt. Moreover, the process of law making itself changed as the accountability of governments to legislatures around the world was severely curtailed because of the emergency. In the midst of these dramatic developments, and as the first wave of the pandemic ravaged the United Kingdom under national lockdown, my colleagues and I at the Institute of Advanced Legal Studies (IALS) sought to respond with a range of online events designed to document this new reality.
As part of that response to this new body of pandemic law, throughout the 2020–21 academic year it was my privilege to host a series of remote seminars featuring researchers who had responded to a call for papers on the broad topic of ‘Law and Humanities in a Pandemic’. This theme was designed to recognize the location of IALS within the School of Advanced Study of the University of London. The School’s aim is to promote and facilitate academic research in the humanities. Within the School, we have been keen to stress the important role of the humanities in making sense of COVID-19. We also wanted to emphasize the importance of law as being centre stage within the humanities. The result was a wide-ranging and fascinating monthly series of seminars which attracted a worldwide audience as we moved through various stages of the pandemic. The seminars remain accessible on the Institute’s website and we believe that they form an important part of the historical record of our time (see IALS 2022).
Following on from the seminar series, the participants were invited to submit written versions of their papers for publication. The result is this edited collection, which foregrounds those papers from the series which most directly engage with the relationship between law, the humanities and the COVID-19 crisis. In addition, those papers which are more directly focused on public policy developments have been published as special sections in the IALS open access journal Amicus Curiae, entitled ‘Law, Public Policy and the Covid Crisis’ (Stychin 2021, 2022). Taken together, these resources provide an important intervention in our understanding of the ongoing changes wrought by the pandemic.
The scholarly landscape
The chapters in this volume can be positioned within the existing research in three complementary dimensions. Their uniqueness lies in the way in which our contributors have produced work which sits at this intersection of law, the humanities and the pandemic. As a consequence, this book advances the scholarship in several important respects.
Law and Coronavirus
First, this collection can be located within a rapidly developing body of scholarship which has sought to understand the legal landscape of COVID-19. An early contribution to this literature, from an American perspective, underscored the huge range of legal fields upon which the response to the virus has had an impact. In Law in the Time of COVID-19, academics from Columbia Law School documented the impact of COVID-19 on such diverse fields as prisoners’ rights, elections law, the justice system, environmental law, the right to privacy, bankruptcy law, corporate transactions and contactless payments (Pistor 2020).1 Such work is of the utmost practical importance in order to map the widespread and rapid legal changes which have resulted from the pandemic.
Further, the impact of governments’ responses to the pandemic on ‘justice’ itself has been subjected to detailed analysis and critique by a number of commentators. For example, in Justice Matters: Essays from the Pandemic, the focus is on the relationship between the public health crisis and the wider issues of social justice which have been laid bare by the pandemic. As stated in the Preface to that collection:
as the pandemic gathered pace, we started to see much more clearly that those in food poverty, from BAME backgrounds, in poor housing, insecure employment, the homeless, the elderly and the disabled were the worst affected. The virus exposed the underlying structural health, race and class inequality in British society (Brennan et al . 2020).
The contributors to that volume highlighted the wide range of ways in which the pandemic (and, more importantly, the responses to it) has not only reflected but also exacerbated those social injustices. Whether it be in the fields of immigration, housing, welfare, discrimination or youth justice – to name only a few – COVID-19 has demonstrated that the UK government’s oft-repeated claim that the pandemic does not discriminate is far from the reality experienced by people generally, both domestically and internationally.
Those uneven and unequal ways in which the pandemic has operated are also the focus of Pandemic Legalities (Cowan and Mumford 2021). In this important book, the analysis is organized around two key concepts: justice and the social context. Crucially, the pandemic is not seen in isolation, but rather is placed within the broader context of the many years of the deliberate UK government policy of austerity which preceded it. As the editors argue in their introduction:
the COVID-19 pandemic has impacted on all areas of law, and the impact has been experienced disproportionately along the lines of race and poverty … demonstrating the ways that the responses to the pandemic have often exaggerated and made apparent the issues which were already in place, often submerged or obscured (Cowan and Mumford 2021, 6).
No less important than these analyses of substantive legal responses to the pandemic has been critique of how the pandemic has shaped the law-making process in the UK and elsewhere. In this regard, the pandemic has demonstrated the continuing relevance of the fundamental question ‘what is law?’ within the context of executive rule making and the curtailment of legislative oversight. This concern has been articulated most forcefully by the former president of the Supreme Court of the United Kingdom, Baroness Hale of Richmond. She argues that the Coronavirus Fund Act (2020) provided the Treasury with massive spending power, which was combined with sweeping powers granted to the government through the Coronavirus Act (2020). Baroness Hale’s central argument is that regulations enacted under the legislation contained ‘draconian powers for the police and some others to enforce the lockdown’ (Baroness Hale of Richmond 2020, 5). However, they also caused confusion for the general public regarding the relationship between law and guidance, particularly through the concept of ‘reasonable excuse’. Although Baroness Hale recognizes that this surrender of control may have been ‘inevitable’, she also emphasizes the need for the restoration of parliamentary oversight in order to ‘get back to a properly functioning Constitution as soon as we possibly can’ (5).
While the draconian character of the restrictions on freedom has been a source of concern for many – as being emblematic of an increasingly authoritarian state – an alternative interpretation of the laws of Coronavirus has been put forward by Kirton-Darling, Carr and Varnava (2020). They dispute the claim that the regulations amounted to a ‘power grab by an overbearing executive determined to outlaw freedoms’ (2020, S303–4). Rather, their argument is that the law of the pandemic is best understood in terms of Bevir’s concept of the ‘stateless state’. Specifically, the state can be conceptualized as ‘inherently made up of different and competing actors inspired by different beliefs and traditions’ (Bevir 2022, 8). For Kirton-Darling, Carr and Varnava, a close reading through the lens of the ‘stateless state’ reveals COVID-19 law to be a site of ‘contestations and complexities’ (2020, S304) with ‘competing narratives and rationalities’ (S306). Thus, for example, by virtue of s 55 and Schedule 25 of the Coronavirus Act (2020), remote court hearings are made publicly accessible for the first time. Similarly, in the context of social care, legislation emphasized the role of ‘values and principles’ (S313), as well as professional discretion and ‘local knowledge’ (S314). In this way, an understanding of legal interventions during the pandemic becomes more complex and nuanced.
Law and the humanities
This collection can also be located within the broad field of scholarship that explores the relationship between law and the humanities. As an approach to the study of law, this field began with a focus on literature, and it has now become a burgeoning area of inquiry. Its boundaries are deliberately blurry. Thus, it includes the study of law in literature, as well as law as literature, and, finally, the relationship between law and literature in terms of methods for the analysis of texts. In recent years, the field has expanded beyond literature to include interdisciplinary approaches drawn from all disciplines within the humanities. The result is a growing number of key handbooks (see, e.g., Sarat, Anderson and Frank 2009; Stern, Del Mar and Meyler 2020) and journals (such as the Yale Journal of Law & the Humanities; Law, Culture and the Humanities; and Law and Humanities) devoted to the subject.
In the series on which this volume is based, the relationship between law and the humanities was kept deliberately open-ended, leaving it to the participants to interpret the theme as they saw fit. Nevertheless, a definite sensibility pervades the field of law and humanities, and this book is no exception. The impetus for the turn to the humanities by lawyers can be understood in part as a response to the historical dominance of law as a supposedly scientific study and, more recently, in reaction to the centrality of economic analysis. In this way, the humanities can provide ‘a salutary counter-hegemonic effect’ for lawyers (Sarat, Anderson and Frank 2009, 6). Thus, the humanities become an important means for making sense of the world – which encompasses the legal world – ‘including relations between those practices of making and the values that may be at stake in such practices and their relations to each other’ (Stern, Del Mar and Meyler 2020, xxii). In this way, the conjunction of law and the humanities has the potential to shed new and important light on issues of ethics, politics, power, inequality and oppression. It can provide ‘certain attitudes and sensitivities’ (xxii) to help us to understand the legal world we inhabit. As a method of inquiry, as Stern, Del Mar and Meyler (xxiii) suggest, ‘there is, then, a rich reflexivity at the heart of the humanities. Such reflexivity offers vital reminders of the contingency and arbitrariness of even our most prized concepts and methods.’
However, the turn to the humanities for lawyers also includes challenges and limitations, which have been widely recognized in cautionary notes within the scholarship. First, interdisciplinary approaches to legal analysis always carry within them the threat of the colonization of those other disciplines by even the most well-meaning legal scholars. After all, as Balkin and Levinson recognized, the tradition of the humanities which has always been central to legal analysis is that of rhetoric. Inevitably, then, there is a constant danger that ‘law is truly the Procrustean bed. It welcomes visiting disciplines to serve its own ends, and then cuts or stretches their work to fit law’s normative template’ (Balkin and Levinson 2006, 178). As a consequence, care needs to be taken to avoid the programmatic use of disciplinary knowledge as simply another set of lawyerly tools. For example, Desmond Manderson (2011, 108) is deeply sceptical of the capacity ‘to find in literature the truth and the salvation of law’. Yet like law, literature – and, indeed, the humanities more generally – can come to be understood ‘not as an object or a closure but instead as a process, an experience, and an opening’ (108).
As a consequence, the disciplines of the humanities need themselves to be kept open as subjects for interrogation and deconstruction. The humanities – like law, the social sciences and the ‘natural’ sciences – are ‘modern disciplinary configurations of knowledge’ and form ‘an entire matrix of material, social and political reality’ (Sarat, Anderson and Frank 2009, 14). That is, the humanities are necessarily embedded within systems of power, through which ‘others’ are created. In short, the relationship between law and the humanities must be understood as dynamic, unstable and continually open to questioning.
Thus, the premise of this volume is that the humanities provide crucial insights, questions and openings into making sense of our legal world rather than providing straightforward answers to legal problems. As Stern, Del Mar and Meyler (2020, xxiv) advocate, and as the contributors to this collection demonstrate, the goal in exploring these relations lies not so much in the final resolution of a problem through a rhetorical flourish, but in posing ‘new, otherwise unasked questions about the techniques, premises and processes that makes these various legalities accepted and disputed’. In the context of the enormous new range of legalities produced by the COVID-19 pandemic, that task would seem all the more pressing. In this world, our understanding of law – more than ever – cannot afford to ‘maintain an aloof discreteness from the taint of external influence’ (Raffield and Watt 2007, v).
The pandemic and the humanities
It is hardly surprising that the COVID-19 pandemic has seen science – and scientists – taking centre stage in public discourse. For politicians and policy makers, the scientist as expert became a standard feature of the backdrop of regular press conferences, providing a ready justification for any and all decisions. Perhaps equally unsurprising, as the pandemic has continued through its various phases, is that criticism of science and of scientists – from a variety of points of view – has intensified. As a result, politicians increasingly have shifted to emphasize their own roles as decision makers informed by scientific modelling rather than as simply ‘followers’ of wherever the science might lead.
But what has also featured throughout the pandemic has been appeals to the importance of knowledge production beyond the ‘natural’ sciences: from the social sciences, the arts and the humanities. Scholars and practitioners in these fields have highlighted the centrality of these areas of inquiry for understanding the radical changes to everyday life which the pandemic has produced, and the ways in which COVID-19 has laid bare the inequalities and vulnerabilities which were already present. Whether it be literature, history, critical theory, the classics – to name only a few of the disciplines – the insights which can be drawn from the humanities prove invaluable for contextualizing our reality:
As the impacts of public health measures ripple through societies, languages and cultures, thinking critically about our reaction to SARS-CoV-2 is as important as new scientific findings about the virus. The humanities can contribute to a deeper understanding of the entrenched mentalities and social dynamics that have informed society’s response to this crisis. And by encouraging us to turn a mirror on our own selves, they prompt us to question whether we are the rational individuals that we aspire to be, and whether we are sufficiently equipped, as a society, to solve our problems (Elsner and Rampto n 2020).
This turn to the humanities – rather than providing univocal answers to the crisis – can raise questions and provide new insights into, for example, the collapse of the public/private divide through lockdown; the closing of national borders; the distribution of vaccines internationally; vaccine hesitancy and distrust of scientific knowledge; and controversies over the use of face masks. For example, the compilation of a ‘Humanities Coronavirus Syllabus’ by Altschuler and Dillon (2020) provides an invaluable resource of materials – drawn from literature, history, philosophy, religion, art history, film and television – which predate the COVID-19 pandemic, as well as new publications produced in the time of COVID-19. As the Syllabus demonstrates, the concerns which have come to dominate have long formed the subject matter for writers, artists and scholars across the humanities.
As well as a means of helping us to make sense of the pandemic, strong arguments have been raised for the importance of the humanities in explicitly informing public policy responses to COVID-19. For example, the British Academy has provided a detailed research review which was specifically organized in terms of the policy areas of ‘(i) knowledge, skills and employment; (ii) communities, culture and empowerment; and (iii) health and well-being’ (Shah 2021). Topics included digital infrastructure, community resilience and social infrastructure. Similarly, a plea has been made by Smith (2020) that the UK government’s Scientific Advisory Group for Emergencies (SAGE) ‘needs to hear from the humanities’ because of the insights which it can provide in terms of morality, culture and narrative, all of which are central to policy making. Looking ahead, then, our understanding of the pandemic and how society responded to it will be a tale that goes well beyond ‘the science’. Rather, ‘it will be the immensely complex story of how this disease intersected with our social behaviour, how we chose to respond as individuals and families, communities and politicians, nations and global agencies’ (Smith 2021).
At the same time, this embrace of the humanities in order to understand the pandemic should not be uncritical. In this respect, the salutary argument of Douzinas (2009) should be kept firmly in view. As he reasons, despite the normative claim of the appeal to ‘humanity’ (and, by extension, the humanities as subject), ‘humanity has acted as a strategy for ontological separation, distribution and classification’ (63). In other words, ‘becoming human is possible only against this impenetrable inhuman background’ (66). In the context of the pandemic, the danger of reproducing this separation and ‘othering’ is ever present and palpable. Thus, just as the humanities interrogate the pandemic, so too it becomes vital that we approach the humanities themselves in a spirit of critique, interrogation, questioning and reflexivity.
Outline of contents
The contributions to this collection sit at the intersection of the three scholarly currents outlined above: legal responses to the pandemic; law and the humanities; and the engagement of the humanities with COVID-19. Each chapter provides important insights into these dynamics and together they provide a unique and timely contribution to a rapidly developing literature.
The book begins with three chapters that explore the relationship between health, economy and commodification. Dimitrios Kivotidis adopts a Marxist perspective in examining how legal responses to the pandemic have been overdetermined by politico-economic content. As a consequence, while executive law making is framed as temporary and emergency in nature, its content serves broader needs of the system of capitalism. The tensions between health and economy are elaborated further by David Seymour. His argument, which deploys theories of commodification, is that the space between the market and the state comes to be occupied by conspiracy theories in response to laws made to control the pandemic. His chapter draws on a critical conception of the humanities while, at the same time, retaining a faith in their ultimate objective. The economic aspect is also central to the contribution by Marc Trabsky. His focus is on the technology of death registration processes. Trabsky posits that the language of economization underpins the systems of registration, which in turn are informed by neoliberal rationalities for the governance of mortality.
The focus of the collection then shifts to historical analysis in a chapter by Mark De Vitis and David Carter. Their subject is the ‘Spanish’ influenza pandemic of 1918 to 1919 in Australia. Specifically, they examine the role of compulsory face masks in that period. This little-known historical precedent offers valuable insights into the way in which masks are subject to interpretation in official discourse and public opinion today. The experience of public health measures is also the subject of David Gurnham’s intervention, but his attention is on contemporary commentary – both academic and political – on the UK government’s legal restrictions on movement. His analysis of responses to lockdown is informed by pandemic poetry and art. This has significance for our wider understanding of metaphors of imprisonment and containment in law and the humanities.
Imprisonment is also central to the contribution by Harison Citrawan and Sabrina Nadilla. Their focus is on shifting penal discourse in Indonesia during the pandemic. They argue that this has amounted to a reinvention of biopolitical knowledge regarding incarceration, which has focused on the vulnerability of the incarcerated. Citrawan and Nadilla adopt a Foucauldian perspective to argue that this shift needs to be understood as part of the ongoing process of managing a population. A very different perspective on confinement is provided by Renisa Mawani and Mikki Stelder. Their subject is passenger vessels on the sea during COVID-19, which quickly became a site of multiple legalities, raising issues of international law and national sovereignty. But their analysis underscores that these questions cannot be approached simply in terms of positive law. Rather, the contrasting ways in which cruise ships, refugees and exploited crew members have been viewed and treated is informed by the wider forces of imperialism, colonialism, racism and capitalism.
The impact of COVID-19 and legal responses to it have also had a disproportionate impact in terms of gender. Kim Barker and Olga Jurasz examine this gendered dimension of the pandemic and how law has been particularly restrictive of women’s rights and online activism. In this contribution, they consider the backlash felt by activists as well as the gendered responses of politicians. The chapter by Nicole Busby and Grace James complements this analysis. The authors investigate how responses to the pandemic, as well as plans for recovery, uncover deeply entrenched and problematic assumptions regarding working families and gendered roles. They argue that this results from the predominance of the paradigm of the autonomous, liberal legal subject. As a corrective, they turn to vulnerability theory, and their chapter underscores the importance of an activist state in building resilience.
The theme of alternative imaginings of a future ‘beyond’ the pandemic is also taken up by Jill Marshall. She interrogates how the forced confinement of the pandemic allows us to explore the connections between law, space and objects. Drawing upon literary texts, Marshall argues that COVID-19 makes particularly visible the interconnectedness of global coexistence, which has potential application through feminist jurisprudence for reimagining International Human Rights Law. The reimagination of our legal future is also developed by Valerio Nitrato Izzo. His chapter explores the role played by pandemics and disasters in law, literature and other forms of art. Nitrato Izzo’s aim is to use these sites of catastrophe as an opportunity to rethink and to reimagine how we live collectively. Finally, the theme of reimagination through recovery is taken up in the Brazilian context by Frederic R. Kellogg, George Browne Rego and Pedro Spíndola B. Alves. They look back to recent Brazilian history and the government of Fernando Cardoso as exemplifying how the philosophy of John Dewey can be a fruitful model for recovery. This is contrasted against the disastrous response to the pandemic displayed by the current government of Jair Bolsonaro, which has left Brazil in such a perilous state.
Concluding thoughts
Taken together, these chapters provide vital insights into the times in which we find ourselves, and they chart hopeful new directions for the future. The authors underscore the central role played by law and legal discourse during the pandemic. They also demonstrate that understanding law’s response to COVID-19 requires a broader intellectual horizon, which can be found in the humanities. Thus, this volume provides an important record of the times as well as a road map, not only for future research but also for remaking the world we share.
Notes
1. A similar compilation which demonstrates the plethora and diversity of legal areas which have been shaped by COVID-19 has been assembled by the Dickson Poon School of Law (n.d.).
References
Altschuler, S. and E. M. Dillon (2020) ‘Humanities in the time of Covid: the Humanities Coronavirus Syllabus’ 27 ISLE: Interdisciplinary Studies in Literature and Environment 836–58.
Balkin, J. M. and S. Levinson (2006) ‘Law and the humanities: an uneasy relationship’ 18 Yale Journal of Law & the Humanities 155–86.
Baroness Hale of Richmond (2020) ‘The Pandemic and the Constitution’ in J. Brennan, M. Groves, R. Friedman, S. James, S. Mullings, Justice Alliance and Legal Action Group (eds) Justice Matters: Essays from the Pandemic. London: LAG Education and Service Trust, 4–5.
Bevir, M. (2022) ‘What is the decentered state?’ 37 Public Policy & Administration 3–21.
Brennan, J., M. Groves, R. Friedman, S. James, S. Mullings, Justice Alliance and Legal Action Group (eds) (2020) Justice Matters: Essays from the Pandemic. London: LAG Education and Service Trust.
Cowan, D. and A. Mumford (eds) (2021) Pandemic Legalities. Bristol: Bristol University Press.
Dickson Poon School of Law (n.d.) ‘The impacts of COVID-19 on law and society’ https://www.kcl.ac.uk/law/research-expertise/the-impacts-of-covid-19.
Douzinas, C. (2009) ‘A Humanities of Resistance: Fragments for a Legal History of Humanity’ in A. Sarat, M. Anderson and C. Frank (eds) Law and the Humanities: An Introduction. Cambridge: Cambridge University Press, 49–72.
Elsner, A. M. and V. Rampton (2020) ‘Opinion: Science alone can’t solve Covid-19. The humanities must help’ (Undark, 4 June) https://undark.org/2020/06/04/covid-19-humanities/.
Institute of Advanced Legal Studies (2022) ‘Videos’ https://ials.sas.ac.uk/digital/videos.
Kirton-Darling, E., H. Carr and T. Varnava (2020) ‘Legislating for a pandemic: exposing the stateless state’ 47 Journal of Law and Society S302–S320.
Manderson, D. (2011) ‘Modernism and the critique of law and literature’ 35 Australian Feminist Law Journal 107–25.
Pistor, K. (2020) Law in the Time of COVID-19 https://scholarship.law.columbia.edu/books/240.
Raffield, P. and G. Watt (2007) ‘Introduction’ 1 Law and Humanities v–x.
Sarat, A., M. Anderson and C. Frank (eds) (2009) Law and the Humanities: An Introduction. Cambridge: Cambridge University Press.
Shah, H. (2021) ‘COVID-19 recovery: science isn’t enough to save us’ 591 Nature 503.
Smith, B. (2020) ‘Why SAGE needs to hear from the humanities’ (Wonkhe, 11 December) http://www.wonkhe.com/blogs/inside-knowledge-why-sage-needs-to-hear-from-the-humanities.
Smith, C. (2021) ‘Plagues and classical history – what the humanities will tell us about COVID in years to come’ (The Conversation, 11 August) https://theconversation.com/plagues-and-classical-history-what-the-humanities-will-tell-us-about-covid-in-years-to-come-165848.
Stern, S., M. Del Mar and B. Meyler (eds) (2020) The Oxford Handbook of Law and Humanities. Oxford: Oxford University Press.
Stychin, C. (ed.) (2021) ‘Special Section: Law, Public Policy and the Covid Crisis – Part One’ 3 Amicus Curiae (series two) 5–75.
Stychin, C. (ed.) (2022) ‘Special Section: Law, Public Policy and the Covid Crisis – Part Two’ 3 Amicus Curiae (series two) 168–277.
Legal sources
Coronavirus Act 2020 (UK).
Coronavirus Fund Act 2020 (UK).