This is a study on the legitimacy of state action and states of emergency during global pandemics, more specifically Covid-19. This study relates to the higher level extension topic of Health, within the context of Human Rights and Power, Sovereignty and International Relations, as it focuses on how health-based political crises can potentially impact legitimacy, sovereignty and both human and civil rights.
I will focus on how global pandemics can incite nationally illegitimate practices, questioning the potential and emergence of tyranny whilst exploring the perceived threats of both individual and national autonomy. I will explore the ways that the legitimacy of state action can be questioned and weakened by crises by exploring theoretical, historical and contemporary political case studies, specifically Plato’s Republic, ancient Rome, the US, UK and China.
Legitimacy refers to groups or actions that are generally considered to be acceptable, usually by conforming to agreed laws or democratic principles. In the face of Covid-19, the legitimacy of governments and government-sanctioned policies have been called into question due to the emergence of the pervasive global phenomenon of ‘states of emergency’ – for example, many believe that democracies are descending into a state of chaos due to the transition from liberty to subjugation in the face of social distancing regulations. As Francis Fukuyama states, the “distinctions between the democracies and non-democracies are becoming increasingly fuzzy”: states of emergency are giving rise to new norms and policies seemingly incompatible with the pre-existing constitutions or culture of states, thus being perceived as illegitimate.
The concept of illegitimate states and tyranny arguably arose from Plato’s Republic where Plato argued that any state disanalogous to an aristocracy was an unjust and immoral societal structure, with tyranny and democracy being the worst two forms of government. Plato defines tyranny as ‘rule without law’ – excessive freedom and pervasive prevalence of “drones” corrupt the minds of citizens, incentivising and enabling them to fully follow their appetites and desires, thus creating the potential for tyrants – when the irrational man is the leader – or mob rule. Excessive freedom, deregulation and lack of supervision in contemporary politics create the opportunity for civilians to attempt to forcefully take power into their own hands – what Joseph Nye would deem an illegitimate form of power diffusion from state to non-state actors – such as what happened in the Capitol Hill Riots. When states are preoccupied with other crises such as pandemics, descension into mob rule or infringement upon human rights is a likely outcome. In the US, the word ‘liberty’ is being frequently used in regards to their civil rights – the diffusion of power into the hands of the populace has given rise to a dichotomy wherein either people won’t isolate themselves because the policies sanctioned by the government “violate their liberties”, or they will isolate themselves because trying to attain herd immunity is a violation of the common good, “collective liberty”. This calls into question John Stuart Mill’s political philosophy: should civil liberties control the government's authority or vice versa? Moreover, this case study exemplifies that when the social norms of a country are constantly evolving, and there is a divide in beliefs, it is difficult to ascertain the level of legitimacy of any state action – this is why this study will largely focus on the legal basis for legitimacy, and not the social basis.
I would now like to define contemporary tyranny as a consequence of dictatorships and, consequently, some States of Emergency wherein the actions of the leader does not conform to the constitution of the state – thus, we can define tyranny as a legally illegitimate rule. Governments are authorised by the people and are to protect the fundamental rights of their populace; in Rome, there was a constitutional structure enabling a dictator to rule. The dictator was meant to work towards bettering society and restoring balance – he was voted by the people or chosen by the parliament. Furthermore, dictatorship was a forward-looking conception in the French Revolution: a provisional government was created to establish a new form of justice and leave behind past conflicts. This goes to destigmatise the definition of a dictatorship as we cannot equate tyranny with dictatory, as tyrants act outside of the constitution using dictator powers. States of Emergency become tyrannical when the executive begins to act in ways unrelated to the emergency by using the authority given to them by the emergency itself. This is why the regulation of States of Emergency is imperative to maintaining the legitimacy of state action and protection of civil and human rights.
As defined earlier, States of Emergency are ‘outside of the rules.’ They are non-compliance with the law, thus they conform to Plato’s definition of tyranny, but are they inherently illegitimate? States of Emergency have three pillars to legitimise its invocation:
The crisis has to be an authentic existential emergency threatening the general public wherein it threatens the lifestyle and political landscape of a state
There has to be a time limit for the State of Emergency. For example, in Rome, the sunset clause was six months and, in the UK, the parliament has to renew emergency powers every six months
The actions taken under the State of Emergency have to be proportional to and address the emergency.
As of 2021, it was reported by the Centre for Civil and Political Rights that 79 countries had declared a State of Emergency in response to Covid-19. They had either done so through international law – i.e. article 15 of the European Convention on Human Rights allows countries to declare a state of emergency “in times of war or other public emergency threatening the life of the nation.” – or through their constitution. By complying with international or constitutional precedent when invoking a State of Emergency or powers analogous to that, states attempted to keep their practices legitimate, but the actions of multiple countries are being called into question.
Currently, the British government can act in unprecedented ways: they can detain people and change economic policies under the new Coronavirus Act added into their legislation. As the government can now easily make new laws and policies – unlike what it was like in history – the sociolegal norms of the country are constantly evolving, thus changing the definition of legitimacy. Moreover, multiple nations such as the UK and Israel, are delaying elections by one year, but aren’t elections the basis for democracy and popular legitimisation? When power is no longer contestable due to the removal of elections, people are not removed from office and new representatives cannot be authorised, therefore the entire democratic notion of systems of checks and balances is negated. In the UK, the constitution enables elections to be delayed as there should be no contesting democratic politics during a time of national unity – representative democratic politics can only be contested when there is an absence of consensus about how to deal with the emergency arises. Moreover, Israel has acted in an unprecedented manner: the two opposition parties united to work together in a collective effort to combat Covid-19. The entire essence of this action is illegitimate as it doesn’t comply with the pre-existing legal norms of Israel, however, this action has been deemed legal in the name of national emergency. In contrast, the USA has never hindered their elections, even in the face of the Spanish Flu in 1918 – although many thinkers believe that the US is attempting to sacrifice the human rights of their citizens, it is argued that the US is simply trying to reaffirm the popular legitimacy of their actions, thus acting in accordance with the constitution.
No matter what the state does in an attempt to reaffirm popular legitimacy or protect the rights of their citizens, actions seem to always either infringe upon rights or change the course of politics, thus changing the structure of a state and creating the potential for illegitimacy. In China, automated tyranny has emerged as the government has hinged their response to Covid-19 on invasive new surveillance methods, such as the Health Code app which has begun collecting residents’ biometrics, location and data without consent to share with the police. Technology for surveillance in China is unconstrained by privacy legislation, a free press, robust civil society, or an independent legal system, thus violating multiple human rights of individuals within China, such as the entirety of the OHCHR’s The right to privacy in the digital age and Article 17 of the International Covenant on Civil and Political Rights. However, in this instance, we must note the prevalence of Cultural Relativism wherein we must note the differences in cultures between all nations and, thus, cannot make judgments using the standards of one's own culture. China has not ratified the ICCPR and, as noted before, the lack of domestic privacy legislation along with the prevalence of the fear-based rule culture in China has enabled China to effectively legitimately create Health Code. But is this moral? Legitimacy and non-tyranny does not necessarily equate with justice, so we must understand that legitimacy doesn’t mean good. China’s actions are socially-acceptable, in accordance with the culture inculcated over the past centuries, but they are severe infringements over the Western projection of normative values. A similar case study can be found in the Middle East where individuals are feeling a decreased sense of agency and are subjugated by repressive orders sanctioned by technological policies violating individual autonomy and multiple articles from the Universal Declaration of Human Rights.
Furthermore, Hungary seems to be moving towards semi-permanent states of emergencies – they are the outlier in European democracies. Hungary does not have a time limit clause in their emergency powers, thus their actions are not domestically illegitimate, but internationally illegitimate. Hungary is part of the European Union and Schengen Region, thus their actions are not compliant with the social and legal norms of Europe. The loss of democracy has enabled the EU to potentially take action as the EU can manage members who violate democracy by taking them to the ECJ and revoking voting rights, thus violating the sovereignty of Hungary. With the increasing phenomenon of economic and political globalisation, many nations are unable to move into tyranny due to their international obligations.
In conclusion, I would like to synthesise all the points brought up to headline that legitimacy is arguably a social construct: the legitimacy of any action can be contested as, in the face of global pandemics, social norms are constantly evolving, they are not absolute or defined. However, states of emergency and state emergency actions, whether they are illegitimate or not, can impact sovereignty and both human and civil rights. Regardless of cultural relativism, actions in response to Covid-19 which can be deemed tyrannical by working beyond the previously agreed legal conventions are severely damaging to individual, national and international actors.