Fontana on Emergency COVID Measures

Fontana on Emergency COVID Measures

One day, hopefully, we’ll calmly reason about what our experiences with COVID-19 have brought us. Or maybe not: history’s lessons are sometimes very difficult to learn.

Biancamaria Fontana has a learned and insightful piece on the blog of the Centre Walras Pareto at the University of Lausanne. Fontana, an accomplished historian of ideas, writes on the French Decree of 1793 known as “loi des suspects” which she describes as a “forerunner of the contemporary Patriot Acts”.

She focuses on Merlin de Douai and Cambacérès, two French jurists who had the distinction of working to shape the Revolutionary Tribunal. They were moderate, and yet collaborated with the Jacobins, including in preparing the legal framework of the Terror regime. Was that only a matter of opportunism?

For them the Revolution meant that France should become not a playground for the display of civic virtues, but “the reign of justice”; it must be framed by constitutional rules and governed by well-conceived, just laws, efficiently applied by a well-oiled institutional machine. After Thermidor, when the worst of the Terror phase was over, this is the objective they continued to pursue, as magistrates, ministers, directors or consuls, donning whatever official garments the subsequent regimes would offer them. The regimes would pass, but the solid edifice of codes, rules, procedures and offices they had almost surreptitiously built would remain.’

This technocratic wishful thinking has relevance when it comes to emergency acts.

Writes Fontana:

Emergency legislation is generally the response to a situation of fear and confusion. It is introduced to address some impending threat, but also (and above all) to convince the public that something radical is done to protect them and to secure their acquiescence. The grounds for fear can be real enough, though they are often magnified by propaganda and popular imagination. There were actually hostile agents and counter-revolutionary conspiracies in France in 1793, as there are secret terrorist cells around the world today. The bellicose language adopted by some politicians in response to the pandemics (fighting an invisible enemy, we are at war, together we can win etc.) seemed better suited to an invasion from outer space than to a health crisis, but the risks for the population did exist. But precisely because they are a response to panic, emergency measures must be unaffected by it. They should be clearly formulated (possibly worked out in advance), specific, limited in time and especially placed under transparent political responsibility; otherwise, they might easily become the instruments of arbitrary power, rather than the means to secure collective safety.

What we have seen lately is basically the opposite: measures conceived under pressure, suited to one particular case, defended in the name of pragmatism and, as such, a sure conduit to decreased political accountability. Fontana’s point is that the law should be credible and clear and predictable in its effects, even though it is dealing with an emergency situation.

We’re reaching a point, as the pandemic progresses, in which we should try to coolly assess what happened. Too often, those who fear government intrusions in their life end up denying that a real danger was ever there. Not only does that undermine the credibility of their cause, but is it also a serious intellectual mistake: the fact that a danger exists, that a genuine emergency is happening, cannot mean that anything could be done. Rules and individual rights are not necessarily to be done away with just because we are confronting a serious risk. If they were, the free society would be a very poor thing indeed.

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