The law of bare life
We are approaching the point where the coronavirus pandemic becomes an historical artefact. It is still part of our lives, but assumes a larger presence in the past than it does in the present. Some kind of public inquiry is promised for later this year; albeit the details of which are still to be determined. There is plenty to be considered; the seeming inadequacy of healthcare provision, the (in)accuracy of scientific modelling, the simple fact that the UK ended up with the highest aggregate death toll in Europe at the greatest economic cost, despite possessing an array of natural advantages which should have given it time, and physical space, to better prepare itself. How far the inquiry will attribute political responsibility for these failings is an unknown. The situation is further confused, as I write, by the fact that Prime Minister, and various other members of government, are alleged to have serially breached the very same ‘lockdown’ provisions which were imposed across the UK for much of 2020 and 2021. Here, again the present meets the past.
In my recent article in the Northern Ireland Legal Quarterly, written in the heat of the crisis, over a year ago, I reached back into a different past in search of some perspective. Because there is one fable of the coronavirus pandemic which is in particular need of being debunked. Despite what we were told, time and again, it was not an ‘unprecedented’ health crisis. Indeed, Covid-19 was the third coronavirus to sweep the world this century, to which can be added various other pandemics and epidemics which have littered modern history. Difficult undoubtedly, not least by reason of scale; but never unprecedented. For which reason we might have hoped to have been better prepared. The possibility of a viral pandemic was even gamed a few years ago – Operation Cygnus in 2016 – which revealed just how inadequate our preparation. But nothing was done. Leaving the UK in spring 2020 with no alternative, it was concluded, other than to order a ‘lockdown’. Which, to a varying extent, is what authorities have done in similar circumstances ever since Roman times. Shut everyone in the homes, and hope for the best.
An extraordinary experience, perhaps, but entirely predictable. In part because history proves it, but in part also because the idea of the ‘regulatory state’ is hard-wired into the culture of modern governance. A thesis which has been argued most forcefully in recent years by the Italian philosopher Giorgio Agamben. Borrowing from Foucault, Agamben supposes that the ‘bio-political’ state is concerned only with ‘life’ lived at its ‘barest’, disregarding not only notions of liberty or ‘right’, but also those of morality and value. In the simplest terms, the quantity of life rather than the quality. An accompanying inference is discovered in Carl Schmitt’s infamous, and sadly prophetic, suggestion that the ‘state of exception’ has assumed a normative authority. Because we live in a state of successive crises, from terrorist to financial to public health, because we are so risk-averse, and so scared, we are readily persuaded of the apparent need for government to assume exceptional powers. Time and again.
We are not, of course, the first generation to be so easily scared. That is the point. Here again, history furnishes plenty of examples. It is understandable if our minds are tempted to return to earlier ‘plagues’, such as the Justinian or the ‘Black Death’ or the ‘great’ plague of 1665. They seem most obviously comparable. Less obvious, perhaps, is the contagious diseases ‘scare’ which swept England in the 1860s. Just one of the many cultivated ‘scares’ of the mid-Victorian moment; dovetailing with infanticide scares and wrongful confinement scares and Fenian scares and murderous wives scares. The contagious diseases ‘scare’ played on the fear that the Royal Navy was fornicating itself out of existence. Thousands of sailors contracting syphilis from prostitutes plying their trade in various naval ports. It was known to be true because the modellers had done their numbers, and the bishops agreed.
The consequence was a series of draconian Contagious Diseases Acts, which included provision for arresting any woman suspected of being a prostitute, subjecting them to invasive physical examinations, and then placing them in ‘lock-ups’, commonly for a period of three months. It was the only solution, as Dr William Acton soberly advised successive parliamentary committees. Acton, author of a series of very long treatises on a variety of sexual behaviours, was perhaps the most famous doctor in England. And probably the most dangerous. He was also wrong. Legislative intervention, as became apparent, made very little difference to incidences of sexual disease. And the Acts were quietly abandoned; as a result, not least, of concerted opposition amongst early-day women’s movements. A bigoted obsessive, consumed by his own self-importance, the ghost of William Acton could be discerned flitting around the background of every ministerial briefing inflicted on Covid-ridden Britain during 2020 and 2021.
As we intimated at the start, the passage of Covid-19 into a recent past opens up the possibility of reflection. Much of that will focus, quite rightly, on matters of healthcare provision and failures of government. But there are other questions, of the kind which should exercise, not just the historian, but the political philosopher. The dramatic suspension, by executive order, of myriad so-called fundamental human rights and civil liberties might have been expected to cause uproar. In the moment there was barely a murmur of complaint. Something which warrants sober consideration, for the simplest of reasons. Covid-19 will not be the last pandemic or epidemic to be visited on us; not even the last coronavirus. At least next time we are told that a given public health crisis is unprecedented, we should know better. We might even be prepared.
We might, as seems fashionable, close with some modelling. In the end, rather less than a quarter of 1 per cent of the population died in the UK, having tested positive for Covid-19 within the previous 28 days; of which an unknown proportion might have died as a direct consequence. During the ‘great’ plague of 1665 that figure, in London, was nearer to 25 per cent. This is not to deny the hideousness of each and every Covid-related death. But it is to question the narrative which was conjured in order to terrify us into abandoning those principles which supposedly lie at the very centre of liberal democracy. And to wonder about the numbers that were purposed to frame this narrative. ‘There are three kinds of lies’, Disraeli is famously said to have said, ‘lies, damned lies, and statistics.’ So it seems. It would be nice to think that next time we will be a little more considered in our response to a perceived public health crisis. Time will tell.