Abstract
There is a long-established claim that emergency action through the law is impossible, or bound to be ineffective. This article seeks to challenge this position by reference to the response of many European states to the Coronavirus pandemic and by drawing on Lon Fuller’s theory of law. It argues that there are a number of reasons why a fragmentation of governance between ordinary, legal action and emergency, extra-legal action is neither necessary nor desirable in this specific context. In societies that are generally rule of law compliant governance according to formal legal principles is not only constraining, it also possesses the quality of a ‘liberating limitation’, creating the room for effective, sustainable action. Too little has been made of this positive dimension of the legal form as an instrument for emergency action.
1 Introduction
There is a long-established debate on the relationship between effective emergency action and the law. It can boast contributions from such (in)famous thinkers as John Locke, A.V. Dicey and Carl Schmitt.1 But one would be wrong to believe that it is an old-fashioned or settled debate. Following the terrorist attacks of the early 2000s there was a palpable sense of unease among defenders of ‘liberal legal thought’. Faced with an emergency that called for swift and decisive executive action many academics were prepared to concede that such action could not and should not be confined by the legal form.2 This form was seen to be rigid, it had to equivocate and it was argued that the ordinary legal order was liable to be corrupted by the introduction of extraordinary measures.3 Although this position is not without its detractors it nevertheless remains influential4 and in the context of state responses to the Covid-19 health crisis, it has taken on new forms. This includes the argument that the pursuit of rule of law compliance in many European countries has inhibited emergency public health measures. It is claimed, partially on this basis, that their pandemic responses compared unfavourably with societies that did not share this objective and its concomitant limitations.5
This contribution argues against this negative association between the rule of law and public health emergencies in liberal societies. It seeks to emphasise the value of the law, including in the coronavirus pandemic. It does so partly by drawing on the public health literature that has considered effective responses to bioterrorism, pandemics and epidemics, evincing a strong reliance on the legal form. Hereby comprehensive legislative action on threats to population health are not only seen as possible but as highly desirable, even necessary.6 Alongside this a summary description of European societies, which have sought to operate within established legal regimes during the Covid-19 pandemic, is provided. They have seen a flourish of legislative activity and/or have used pre-established mechanisms to declare emergencies and to derogate from international agreements.7 In spite of admitted difficulties and imperfections, it is argued that their experience strengthens the argument that formal rule of law compliance is possible in times of crisis. Finally, this is supplemented by a theoretical argument. This maintains that a particular understanding of the legal form – namely, Lon Fuller’s – not only helps conceptualise the pursuit of rule of law compliance in difficult external circumstances, but also demonstrates two core values of legal governance in emergencies: the promotion of trust and autonomy.
The analysis is structured in three parts, beginning with a more general analyses of state responses to exceptional situations and the associated criticisms of the rule of law (Section 2). It then moves on to contrast this scepticism with the theoretical and practical fidelity to the legal form that has manifested itself in the public health sphere and in the European pandemic response (Section 3). In the final section Lon Fuller’s understanding of the law is appealed to (Section 4). It is argued that this provides a theoretical foundation for the attractiveness of legal governance in times of public health emergencies.
2 Extra-Legal Responses to States of Emergency
This section considers the position that emergencies demand ‘extra-legal’ or ‘extra-constitutional’ modes of state action.8 Whereby a state of emergency may be usefully described as:
A crisis identified and labelled by a state to be of such magnitude that it is deemed to cross a threat severity threshold, necessitating urgent, exceptional, and, consequently, temporary actions by the state not permissible when normal conditions exist.9
Oren Gross and Mark Tushnet are two prominent legal theorists who have presented variants of this position. Their view is based partly on the empirical claim that in times of crisis divergences from ordinary legal governance must be expected because an influential driver for state action will be the motivation to achieve a satisfactory crisis response, rather than the desire to uphold established legal constraints.10 But more significantly, this empirical claim is paired with normative recommendations or ‘models’ of action, models which advocate for significant divergences from the rule of law.
Notable reactions to these proposals have focussed on their substantive implications: their impact on civil liberties and the erosion of constitutional restraints on state action.11 These are not the divergences from the rule of law that I wish to explore in the following article.12 Rather, the conception of the rule of law that is under consideration is based on Lon Fuller’s elaboration of the ‘inner morality of law’.13 As this makes no direct substantive demands it has sometimes been described as a formal conception.14 Fuller assumes that the purpose of law is to direct human conduct through general rules and he argues that eight principles can be derived from this purpose.15 Legal norms must be: (1) promulgated (2) general (3) clear (4) non-contradictory (5) possible to comply with (6) constant through time (7) prospective (i.e. non-retroactive); and (8) there must be congruence between these norms and their administration.16 These principles are bound up with any rule-making activity and by extension they are connected to the very nature of law; they stem from “the particular way that a legal order creates and communicates its norms”.17 A distinctive legal form emerges when there is both a striving to approximate to these principles (something Fuller terms a ‘morality of aspiration’)18 and when there is compliance with a basic threshold of such requirements (termed a ‘morality of duty’).19
As will be illustrated in the remainder of this section, the idea that the rule of law involves congruence with these desiderata is an important premise for those arguing that the law is an ineffective crisis management tool. By subsequently showing that it is possible to govern through the legal form in public health emergencies (Section 3) and that there are good reasons for doing so (Section 4) it is hoped that a normatively attractive mode of governance is reinforced.
2.1 The Unsuitability of the Legal Form
Both Gross and Tushnet are prepared to concede that there can be only a highly superficial adherence to the law’s formal principles, especially in terms of the principles of generality, prospectivity and clarity and in terms of the congruence between declared rule and official action.20 The relevant arguments can be succinctly stated as follows.
If one invokes general laws to deal with emergency situations, then one is faced with the problem that “[g]eneral norms are limited in their scope of application to those circumstances in which the normal state of affairs prevails. Crises undermine this factual basis and thus pull the rug out from under the feet of ordinary norms”.21 While it may appear possible for state actors to resort to general norms in exceptional situations, this is rationalising away what is in fact happening – the “expansive use of sheer power”.22 This is unavoidable because the general provision does not respond to the situation that is actually facing the policy maker.23
Likewise, attempts to prospectively promulgate clear norms that define and delimit a particular state of emergency and permissible responses are doomed to failure because “the external limits and boundaries of [the emergency’s] penumbra are unclear, and cannot be made clear in advance”.24 There will be an inevitable failure to anticipate the states of exception that can arise and the criteria that will direct the governance of such states.25 If any given norm can be applied at all, then the determination of its content and the nature of its application will be an exercise in political power – something that is understood to be distinct from a serious attempt to determine the meaning of a pre-established provision and to direct the exercise of official authority.26
The interpretation and application of provisions will be subject to a rationality that is fundamentally at odds with a view of law as a mode of guiding human conduct through predetermined rules. Accordingly, in chaotic and novel circumstances, adherence to formal rule of law principles becomes undesirable and unrealistic, if not impossible. Such an argument is further bolstered by the interrelation between the formal principles. This is a facet Fuller would have had no trouble acknowledging: “infringements of legal morality tend to become cumulative”.27 Failures in one respect tend to beget failures in others. As a result, exceptional disruptions to some aspects of the legal order’s operation could snowball into fundamental challenges for the rule of law.
2.2 Models of Emergency Action
In response to these dangers models are advanced that are said to place more realistic and more effective limitations on emergency action. The modern proponents of extra-legal emergency action are committed to the notion that, if the law cannot provide the necessary guidance, then constraints must be drawn from elsewhere. Two positions can be distinguished in this regard.
According to the first model, the relevant constraints may not be purely legal, but they function in close alignment with the law and are very much dependent on the background conditions of a legal order that continues to function in an ‘ordinary’ fashion and whose authority remains fully intact once the exceptional situation has passed. I follow other theorists in interpreting Gross’ model in this manner.28 His extra-legal measures model assumes that legal norms will remain in effect and that they will not be overridden, remaining functional benchmarks for actions throughout emergencies.29 At the same time, state actors should have an option of pursuing an extra-legal course of action, whereby it is uncertain whether society will decide ex-post whether these actions are to be ratified and whether this should entail a full or partial relief from punishment, or even whether it should result in a reward.30 To this extent it is the uncertainty concerning the political and societal response that primarily serves as a check on the relevant actor’s decisions.
The second model is more radical, as it seeks to show that limitations on emergency action must altogether extra-legal. This is the kind proposed by Tushnet, who envisages a certain kind of ‘moralised politics’ as the ultimate control mechanism on the use of emergency powers.31 It is “politics rather than law [that] properly governs outcomes”.32 Actions are not completely unconstrained because limitations arise from the need for political leaders to appeal to their constituents, at least partially on the basis of moral claims. This produces sociological and political restrictions on the exercise of exceptional powers.33 Directly the law plays no role in constraining relevant actions, but it may indirectly have a sociological effect. For instance, certain interests may be served by generally complying with its precepts and particular groups of state actors may also end up internalising its demands, lending them additional force.34
For reasons of brevity these models cannot be explored further, yet this cursory overview illustrates the way in which they would contribute to a degeneration of the formal rule of law. A striking aspect of both types of models is the ‘utter instrumentality’35 with which it is envisioned that the rule of law can be utilised and nevertheless preserved. In Gross’s model it is believed that one of the formal precepts – congruence between declared rule and official action – can be readily sacrificed, while ensuring an otherwise normal operation of the legal system. Yet this sacrifice is at least partly mandated by a desire to remove other constraints of the legal form. Remember specifically the objections levelled against the demands of clarity, prospectivity and generality. Consequently, one may suppose that the emergency actor will additionally forsake adherence to some of these desiderata in their emergency response. It must also be remembered that failures in this realm tend to be cumulative, so that it cannot be assumed that these formal deficiencies will remain self-contained. The implications of Tushnet’s model are even more concerning in this respect. There is apparently little reason to afford rule of law considerations any special status in the deliberations about the need for, or the appropriateness of, emergency action. Certain groups may have an interest in the maintenance of these principles and certain professions may even have developed an internal commitment to them, but ultimately there is a political calculus to be made, which is always the sum of a mixed pragmatic, instrumental and moral deliberation.36 While Gross’s model may undermine the operation of a legal system, it at least seeks to preserve a considerable body of ordinary legal norms. On Tushnet’s view governance through rule-based norms can be pursued with potentially limitless flexibility.
In sum therefore, these models promote cumulative violations of the eight principles and, more disconcertingly, they frame adherence to the rule of law as an entirely optional enterprise.37 It is this same attitude that has manifested itself in the critique of the European pandemic response and in the praise of extra-legal approaches of other societies. As will be argued in Sections 3 and 4, this makes too little of legality’s positive attributes.
3 Health Crises and Public Health Responses
To make the connection between the outlined wider discussion and the management of public health crises clear it bears emphasising that pandemics, such as the current Covid-19 pandemic, come close to constituting an ‘ideal’ state of emergency in the sense established above: the threat to the lives and the well-being of entire populations is of such a magnitude that it requires urgent, exceptional and temporary measures in response.38 Examining this context is instructive because it indicates that a crisis response based on the rule of law is not only possible, but may in fact be a valuable mode of governance that contrasts favourably with the outlined models.
The public health sphere also provides an opportunity to clarify what an extra-legal mode of governance would amount to in a concrete emergency situation. Hereby an important distinction must be drawn. A radical break with legality is not precipitated by the pursuit of public health policy objectives through non-legal means (potentially still within a legal framework), or by the pursuit of such objectives alongside a legal framework (i.e. without a clear connection to the law). This can take the form of education programmes or of an informal approach to regulation, for example by requesting voluntary compliance.39 These are common tactics in ordinary circumstances and there is also space for them in pandemic responses.40 Rather, an extra-legal mode of governance in the present sense constitutes a suspension or degradation of legality in order to facilitate otherwise ‘legally inhibited’ actions. It occurs where the pursuit of public health policy objectives leads to sufficiently grave departures from the formal precepts outlined above. The Chinese response to Covid-19 – which has been contrasted favourably with the European approach41 – provides an example of such radical departures. Here, constitutionally embedded emergency powers were never utilised, casting doubt on the legality of the lockdowns that were instituted.42 Indeed, in spite of legal provisions that mandated authorities to give an early warning of such public health measures, restrictions were introduced without any prior notice.43 Simultaneously there was selective compliance with established norms (reminiscent of the kind advocated by the extra-legal models of state action) and inconsistencies in the law were exploited to allow for official action without a legal basis.44 Overall one may say that there was a strong political element in the Chinese approach to the pandemic, which partially superseded and partially ignored the existing legal framework and instituted a managerial top-down approach to emergency governance.45
By contrast with such an approach, one of the most relevant dimensions of a legal mode of governance is the promulgation of sufficiently clear and general norms ex ante, either before the occurrence of the crisis or throughout its course (i.e. during the state of exception, but before executive action). This maintains the law’s guiding function and it facilitates an alignment between official action and declared rule. To uncover whether the creation of such norms is even possible in the public health context, it is illustrative to take the kinds of ‘exceptional’ measures that became necessary in the course of the coronavirus pandemic. Many of the most significant responses had a well-established history and their form and scope had already provided a locus for discussion in the public health literature. For example, state-enforced orders to shelter in place, travel restrictions, social distancing, as well as legally embedded obligations to provide state support for those subject to these interferences had already been carefully considered by commentators.46 Indeed, the role of such actions in the control of emergent, highly infectious diseases was a chief factor in discussions surrounding the interpretation and reform of specific legislative instruments.47
A concrete example from the European context is presented by the German Infektionsschutzgesetz (entering into force in 2001). Here the measures for the prevention and combatting of infectious diseases – which expressly included quarantines, the closure of schools and nurseries and the banning of large gatherings48 – provided a focal point for analyses long before the current pandemic. The substantive merit, doctrinal systematisation and constitutional validity of specific responses had been the repeated subjects of criticism and of targeted reform recommendations.49 Ultimately, underlying both the general public health discourse and the particular literature on German health law, there were efforts to improve existing legislative instruments for pandemic governance. There was a shared conviction that binding trade-offs between fundamental values could – and ought to – be made before this choice was forced by the exigencies of a health crisis.50 The pragmatic elaboration of these issues long before the Covid-19 pandemic lends a great deal of support to the view that emergency laws are “no less capable of formally acceptable articulation, can be enacted in advance and applied only when the emergency is declared and legally or politically validated”.51
The possibility of a legal mode of governance is also supported by the manner in which several European states pursued an ongoing, intra-legal response to the pandemic. These actors made considered attempts to comply with formal rule of law principles, in spite of some difficulties and in spite of varying degrees of success. Towards this end, some states relied on the powers and exceptions within existing constitutional provisions and/or legislation, some adapted such legislation and others introduced exceptional legislative instruments to support their emergency responses.52 One can point to a number of examples in this context. The German response was based upon the aforementioned existing legislation, but this was also incrementally amended as the pandemic progressed.53 In Spain there was a declaration of a state of emergency (specifically ‘a state of alarm’) pursuant to Article 116 of the Spanish Constitution54 and in France a new state of health emergency was codified in the Public Health Code as a piece of ordinary legislation.55 It is true that attempts to govern intra-legally can, and have occasionally, violated the eight desiderata. For instance, the UK government’s early response was problematic, as it was plagued by a relative lack of precision, instability, incoherence and sometimes doubtful claims to executive authority.56 Yet these were partial shortcomings and are far removed from the radical and allegedly unavoidable deficiencies that are said to demand an extra-legal mode of governance.
A further instructive feature of the literature on the responses to public health emergencies is the strong sense that the law is a valuable tool for that endeavour. The legal form is presented as a prerequisite for a successful management of the relevant danger, rather than a liability to government action.57 In particular, the law provides a means of effective communication with large swathes of the public, who must understand and cooperate with the relevant measures to render them effective.58 Partly this is mandated by the population-wide scope of the threat, but it is also a function of the complexity of coordination between a whole range of different private and public actors (employers, care facilities, essential workers, etc.).59 In addition, in order to provide a coherent and effective strategy there is an unavoidable need to fit the emergency guidance within an established framework of legal norms that are integral to the functioning of our societies. This framework covers aspects of health law, employment law and social security law – to name but a few.60 The notion that one could easily step outside this complex web of expectations and interrelationships and simultaneously direct a well-functioning response to a public health crisis is far removed from the reality of the situation, a reality that is significantly constituted by the rule of law.61
This brings me to the more fundamental point that, underlying the exposition of such specific advantages, there is a recognition that the law is a distinctly valuable tool for social organisation. More specifically, as we will see below, the law facilitates the pursuit of two values that stand out in the public health literature and the current crisis context: trust and autonomy.62 Regarding the former, it is understood that public trust is an essential aspect of an effective public health response63 and, in order to generate and maintain this trust between the government and the governed, there is an intuitive reliance on the legal form.64 A similar reliance can be identified in relation to the value of autonomy or liberty.65 In this respect, the preservation of freedoms and the creation of an attractive framework for self-directed action are also often held out as significant elements that are likely to contribute to the success of public health interventions.66 Here too it is through adherence to the legal form that these values are pursued.67 The next section seeks to take these intuitions seriously and to utilise Fuller’s insights into the nature of law to expand upon the legal form’s realisation of these values.
4 Relying on the Rule of Law in Health Crises
The foregoing analysis revealed a significant potential for rule-of-law compliance in public health crises. In the European context there were examples of general norms that anticipated necessary responses and many states, while operating under considerable time pressures, opted for the invocation, amendment and extension of existing legislative instruments. It also emerged that such compliance has been eagerly encouraged by public health theorists. Consequently, whereas some critics have suggested that a fragmentation between normal, legal action and exceptional, extra-legal action is a universally necessary and attractive crisis management tool, this position has now been thrown into some doubt. This section seeks to provide a theoretical basis for this and for the response to the legal sceptic. Towards this end, Fuller’s theory of law is utilised. It is a theory that is especially appealing for this purpose because of the attention that it gives to the conditions that are necessary for the effective functioning of legal institutions, encompassing both moral and practical demands.68 The need to conform to external realities emphasises that those governing a legal order cannot exercise their power completely freely, but must pursue a process of reasoned discovery.69 By taking this process seriously and thereby conceiving of law as a means of social architecture, Fuller’s work deals with the “problems of the creation and maintenance of order in the social world by means of law”.70 Fuller’s theory is distinctly valuable because it both explains why complying with the rule of law may be difficult, but nevertheless possible, and why it also remains a valuable pursuit – even if it takes an imperfect form.
In the first instance therefore, Fuller’s approach provides a useful perspective that qualifies the claims that adherence to the rule of law is fundamentally challenged in extraordinary times. Especially his characterisation of law as a ‘morality of aspiration’ is instructive because it moves one away from the view that compliance with the rule of law is a monolithic, either/or affair. Instead, this term emphasises that compliance with the law’s precepts poses an “increasingly demanding challenge to human capacity” the more it is approximated to.71 Indeed, Fuller adduces three grounds of failure that are inherent in this enterprise, reasons that apply independently from the ordinary or exceptional nature of any given situation. The first reason is the unavoidable reality of conflict between his eight desiderata in an imperfect world. Fuller for example notes that situations will arise where “granting retroactive effect to legal rules not only becomes tolerable, but may actually be essential to advance the cause of legality”.72 Second, Fuller is cognisant of unavoidable external restrictions on their realisation, such as “the energy, insight, intelligence, and conscientiousness” of those conducting the law-making enterprise.73 Both of these difficulties are then compounded by a third factor: an inability to quantitatively and uncontroversially measure adherence to the relevant principles.74 In consequence, an assessment of rule of law compliance should begin with the recognition that internal and external influences always place various stresses and restrictions on the approximation to the rule of law. If so, then it should further be agreed that “a legal system can legitimately compromise some basic legal virtues while maintaining its identity as a normatively defensible model of legality”.75
The stresses of a public health emergency may pose additional challenges in this regard but, without more, one cannot assume that they will fall outside of the established spectrum of rule of law compliance. In order to make this argument, those urging extra-legal governance ought to appeal to Fuller’s notion of the ‘morality of duty’. According to this approach, they would have to demonstrate that crises demand not just any divergence from the rule of law’s tenets, but rather that the stresses posed by them are so extraordinary as to require “a general and drastic deterioration in legality”.76 This is a much more ambitious argument and it was not readily made out in the examined pandemic responses.
Fuller also argues for the desirability of legal governance by appealing to the values of reciprocal trust and liberty, which were identified as two important values that underlie good governance in public health crises. By intimating that the legal form is uniquely supportive of these values, Fuller’s theory also provides a basis for the claim that the law has a particular ability to provide desirable responses to such situations. The relevant arguments bear some elaboration.
On one understanding of Fuller the legal form’s distinct value stems from its special affinity to freedom.77 At the very least one may say that he saw a functioning legal system as well placed to enable individuals to live self-directed lives in interaction with their fellows. This aspect is central to the relationship between lawgiver and subject and he argued that it had been neglected by those who focussed on the law as an instrument for social control.78 Compliance with the eight aforementioned principles creates the space for individual autonomy, a moral value which is deeply embedded in the political tradition of liberal societies, and which is taken to promote the happiness and satisfaction of individual subjects.79 Specifically, Fuller’s claim is that “law furnishes a base-line for self-directed action, not a detailed set of instructions for accomplishing specific objectives”,80 so that it must attribute to legal subjects the status of responsible agents that are “capable of understanding and following rules”.81 Within this higher-level facilitative framework it is of course possible for legislators to settle on alternative distributions of freedom, some more and some less restrictive and some more and some less desirable.82 But this does not change the fact that adherence to the principles – especially to those of generality and of congruence between official action and declared rule – provides the basis for effective individual agency, for cooperation between subjects and for cooperation between them and their rulers in the pursuit of common purposes.83
By contrast, if there is a conscious effort to circumvent the rule of law principles – as we are told is part of the motivation for extra-legal emergency action – then there is a risk that “individuals are apt to become demoralized and disoriented to such an extent that the original aims of government hardly seem worth pursuing”.84 Framed in these terms the intuition that law promotes liberty, which played a prominent role in the public health law context, can be given concrete meaning. Because the legal form affirms one important conception of liberty, which enables individuals to pursue their own goals alongside the government’s more general demands, it is able to offer a much more attractive basis for the necessary cooperation to overcome the common threat. This must be especially true where individuals ordinarily possess and value a great deal of freedom and where a crisis forces them to make temporary concessions. Those concessions are at least structured in a way to facilitate continued autonomous interactions and, on Fuller’s view, they may also be classed as legitimate overall distributions of liberty if they are understood to serve common ends or to encourage socially responsible behaviour.85 Getting this distribution right would add to the law’s appeal and must form the subject of a separate, substantive analysis. Still, even without this additional step, Fuller’s association between law and liberty highlights that adherence to the rule of law underpins the effective guidance of a population’s self-directed behaviour – a type of guidance upon which large-scale and complex public health responses in liberal societies are essentially premised.
More important still is Fuller’s intimation that subjects are able to enjoy a certain reciprocity between themselves and the lawgiver under the rule of law. The significance of this point can hardly be overstated because it serves to distinguish law from an arbitrary, one-way projection of authority.86 What is instead created for the legal subject is “a relatively stable reciprocity of expectations”87 between themselves and the ruler. Hereby it is not only the subjects who owe obedience, but also those in power who, by adhering to the eight desiderata, make a continuous commitment to those they govern. The latter responds to the former’s obedience with a certain degree of forbearance in the manner in which the state’s power is exercised.88 This reciprocity is a necessary condition for achieving a desirable stability of interactional expectancies and, by ensuring that obedience to rules has a point, it further provides a sound basis for good-faith cooperation.89 One can see that the situation is fundamentally different if a subject believed that this kind of reciprocity had fallen away – for instance if they believed that the ruler’s respect for established norms was merely a matter of expediency, to be determined entirely by a political calculus or by their utility to the state’s crisis response. Given the malleability of such situations, there would be a dramatically reduced incentive for the ruled to cooperate by adhering to previously established rules.90
Jeremy Waldron expands upon this point by considering how the trust and reciprocity promoted by the legal form may shape a society’s fidelity to law.91 He argues that extra-legal systems of governance may be feasible and that they may even be institutionally more appropriate than adherence to the law in certain situations. However, he notes that they “depend, for the loyalty and cooperation of those subject to them, on the subjects’ acceptance of and enthusiasm for the ends and purposes they are used to pursue” so that “[f]idelity to them as institutions cannot survive widespread disillusionment with those goals”.92 By contrast, governance in accordance with the rule of law – precisely because it is able to establish a reciprocal relationship of trust – is able to provide the “only basis on which some citizens are willing to cooperate in this enterprise.”93 Again, we may say that adherence to the legal form provides certain benefits that would be readily cognisable by public health experts: the maximisation of compliance via the (implicit) communication of complementary, non-coercive reasons.
With these factors in mind it is entirely plausible that the law would recommend itself as an effective mode of emergency action in liberal societies. Fuller’s theory illuminates why the law’s affinity to liberty and reciprocity may motivate a more effective crisis response within them. It is because subjects and rulers begin from a shared, relatively stable expectation that they will premise their coordinated behaviour on a framework of legality. It is a dangerous proposition to disrupt this expectation, particularly at a time when voluntary cooperation is an important objective of public policy.
5 Conclusion
There may be societies in which an extra-legal approach to emergency action – and by extension to the current pandemic – is deemed effective and attractive. Yet this must entail fundamental departures from governance by pre- determined rules. It has been argued that this experience is not readily transferrable to liberal societies that are generally rule of law compliant. This was exemplified by reference to several European states that may not always have lived up to the demanding aspirations of legality, but which also did not fall radically short of them. Even in the face of a great deal of uncertainty, stress and fear, they found it possible to pursue an intra-legal approach to emergency governance. There was no unavoidable fragmentation in this respect. Indeed, it has been argued that in societies that are generally rule of law compliant governance in accordance with formal legal principles is attractive in virtue of its realisation of several important values. Ultimately, by complementing this analysis with Lon Fuller’s theory of the law, an important conviction is reinforced: the legal form is not only constraining, but also possesses the quality of a ‘liberating limitation’,94 creating the room for effective, sustainable public health action.
D. Dyzenhaus, ‘Schmitt v. Dicey: Are States of Emergency Inside or Outside the Legal Order?’, Cardozo Law Review 27(5) (2006) 2005–2040.
Scheuerman provides a typology of such claims: W.E. Scheuerman, ‘States of Emergency’, in: J. Meierhenrich and O. Simons (eds.), The Oxford Handbook of Carl Schmitt (New York, NY: Oxford University Press, 2016) pp. 560–565.
O. Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’, The Yale Law Journal 112(5) (2003) 1011–1134, pp. 1089–1096.
Some of the most notable detractors include: David Dyzenhaus (see, e.g., D. Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (New York, NY: Cambridge University Press, 2006)); William E. Scheuerman (see, e.g., W.E. Scheuerman, ‘Survey Article: Emergency Powers and the Rule of Law After 9/11’, The Journal of Political Philosophy 14(1) (2006) 61–84, DOI: 10.1111/j.1467-9760.2006.00256.x); and Tom Campbell (T. Campbell, ‘Emergency Strategies for Prescriptive Legal Positivists: Anti-Terrorist Law and Legal Theory’, in: V.V. Ramraj (ed.), Emergencies and the Limits of Legality (New York, NY: Cambridge University Press, 2008)).
See the exposition in: Eva Pils, ‘China’s Response to the Coronavirus Pandemic: Fighting Two Enemies’, 2020,
See, e.g., L.O. Gostin, ‘The Model State Emergency Health Powers Act: Public Health and Civil Liberties in a Time of Terrorism’, Health Matrix: Journal of Law-Medicine 13(1) (2003) 3–32; and G.J. Annas, ‘Blinded by Bioterrorism: Public Health and Liberty in the 21st Century’, Health Matrix: Journal of Law-Medicine 13(1) (2003) 33–70.
A. Greene, Emergency Powers in a Time of Pandemic (Bristol: Bristol University Press, 2021) pp. 20–29.
Gross uses the former term to describe his model (Gross supra note 3, p. 1096), whereas Tushnet uses the latter to highlight his (even) greater emphasis on political constraints, see M. Tushnet, ‘Emergencies and the Idea of Constitutionalism’, in M. Tushnet (ed.), The Constitution in Wartime: Beyond Alarmism and Complacency (Durham, NC: Duke University Press, 2005) pp. 45–46. However, for convenience and in order to capture both models’ dubious relationship to a formal conception of the rule of law I will refer to both as extra-legal models.
Greene, supra note 7, p. 30.
Gross supposes there can inter alia be agreement on the points that “(1) Emergencies call for extraordinary governmental responses, (2) constitutional arguments have not greatly constrained any government faced with the need to respond to such emergencies”: Gross supra note 3, p. 1097. Tushnet also anticipates that “the suspension of legality is (almost) inevitable” because “Constitution designers cannot anticipate all the forms of emergency that will arise and prompt governing élites to expand their power”; Tushnet, supra note 8, p. 45.
Dyzenhaus, supra note 4.
Throughout this article governance ‘by law’, through the ‘legal form’ or in a manner that complies with the ‘rule of law’ should be understood as synonymous with the formal criteria outlined in this paragraph.
L.L. Fuller, The Morality of Law (Revised Edition) (New Haven, CT: Yale University Press, 1969), p. 42. Fuller’s theory and his conception can be found only on the edge of the existing debates: see, e.g., M. Tushnet, ‘The Constitution of Law: Legality in a Time of Emergency (Publication Review)’, Public Law (2007) 604–606; Scheuerman, supra note 4, p. 65. To my knowledge Claire Kilpatrick is the only one to invoke Fuller’s theory systematically in relation to emergency responses. However, her article has a narrow focus on his eight principles and they are applied to critique a specific context: C. Kilpatrick; ‘On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts’, Oxford Journal of Legal Studies 35(2) (2015) 325–353, DOI: 10.1093/ojls/gqv002.
B.Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge University Press, 2004) pp. 93–94.
Fuller makes clear that this view is not reliant on any concrete substantive rights or an ‘external morality’: Fuller, supra note 13, p. 645. For the centrality of purposiveness/functionality in Fuller’s understanding of law see: K.I. Winston, ‘Introduction’, in K.I. Winston (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (Revised Edition) (Oxford: Hart Publishing, 2001) pp. 31–32.
Fuller, supra note 13, p. 39.
K. Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford: Bloomsbury, 2012) p. 2.
Fuller, supra note 13, pp. 41–44. Although Fuller conceptualises this aspect of his theory as a ‘morality’, this is not entailed by the structural commitment that the legal principles constitute an ‘archetype’ (an abstract ideal that is approximated to), see: N.E. Simmonds, Central issues in jurisprudence: Justice, law and rights (5th Edition) (London: Sweet & Maxwell Publishing, 2018) pp. 252–256.
Fuller, supra note 13, pp. 5–6.
Thus they make substantial concessions to Schmitt’s challenge to the liberal legal order: Scheuermann, supra note 2, pp. 560–561. I do not suggest that the two positions are identical, particularly given the influence of legal realism/critical legal studies on Tushnet: M. Tushnet, ‘Meditations on Carl Schmitt’, Georgia Law Review 40(3) (2006) 877–888, p. 884. Nevertheless, their criticisms of the legal form display a great deal of agreement and may be understood as complementary.
O. Gross, ‘The Normless and Exceptionless Exception: Carl Schmitt’s Theory of Emergency Powers and the Norm-Exception Dichotomy’, Cardozo Law Review 21(5–6) (2000) 1825–1868, p. 1842.
Tushnet, supra note 8, p. 49.
Ibid., p. 47.
Gross, supra note 21, p. 1832. A similar point is found in Tushnet, supra note 20, p. 886.
Tushnet, supra note 8, p. 46.
Tushnet, supra note 20, p. 882.
Fuller, supra note 13, p. 92.
Dyzenhaus, supra note 1, p. 2029; M. Tushnet, ‘The Political Constitution of Emergency Powers: Some Conceptual Issues’, in: V.V. Ramraj (ed.), Emergencies and the Limits of Legality (New York, NY: Cambridge University Press, 2008) p. 146. Indeed, Gross himself objects to the notion that his model creates a ‘zone uncontrolled by law’: O. Gross, ‘Extra-Legality and the Ethic of Political Responsibility’, in: V.V. Ramraj (ed.), Emergencies and the Limits of Legality (New York, NY: Cambridge University Press, 2008) p. 79.
O. Gross and N. Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006) p. 136.
Gross, supra note 3, p. 1112.
Tushnet, supra note 28, p. 147.
Tushnet, supra note 20, p. 882.
Tushnet, supra note 28, pp. 151–152.
Ibid., p. 155.
To borrow a phrase from D. Dyzenhaus ‘The Compulsion of Legality’, in: V.V. Ramraj (ed.), Emergencies and the Limits of Legality (New York, NY: Cambridge University Press, 2008) p. 58.
Tushnet, supra note 28, p. 151.
Underlying this appears to be, at least in part, a belief in the “infinite pliability of social arrangements”, whereby these arrangements can be shaped to any necessary ends and that accomplishing this is merely a matter of implementation: L.L. Fuller, ‘Means and Ends’, in: K.I. Winston (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (Revised Edition) (Oxford: Hart Publishing, 2001) p. 70. Poole provides a similar critique, specifically in a common law context: T. Poole, ‘Constitutional Exceptionalism and The Common Law’, International Journal of Constitutional Law 7(2) (2009) 247–274, pp. 272–274, DOI: 10.1093/icon/mop006.
Greene, supra note 7, pp. 18–20; Gross, supra note 3, p.1025.
R. Martin, ‘Law, and Public Health Policy’, in: S. Quah and K. Heggenhougen (eds.), International Encyclopedia of Public Health (San Diego, CA: Academic Press, 2008), p. 31.
Notably Japan’s Coronavirus response relied heavily on a dimension of voluntary compliance: J. Fisher, ‘“All I can do is ask”: Covid-19, lockdowns without law, and constitutionalism in Japan’, Public Law (April 2021) 251–261.
U. Mattei, L. Guanghua and E. Ariano, ‘The Chinese Advantage in Emergency Law’, Global Jurist 21(1) (2021) 1–58, DOI:
Z. Wang and J. Chen, ‘People’s Republic of China: Legal Response to Covid 19’, The Oxford Compendium of National Legal Responses to Covid-19, available online at
Z. Wang, ‘Law in crisis: a critical analysis of the role of law in China’s fight against Covid-19’, Griffith Law Review 29(2) (2020) 253–272, p. 262.
Ibid., pp. 262–263.
Ibid., pp. 264–265. See also: Mattei, supra note 41, p. 7 and Wang and Chen, supra note 42.
See, e.g., L.O. Gostin and L.F. Wiley, Public Health Law: Power, Duty, Restraint (3rd edition) (Oakland, CA: University of California Press, 2016) pp. 416–425.
Gostin, supra note 6; G.J. Annas, ‘The Statue of Security: Human Rights and Post-9/11 Epidemics’, Advances in Bioethics 9 (2006) 3–28.
Gesetz zur Verhütung und Bekämpfung von Infektionskrankheiten beim Menschen (29 July 2000, BGBl. I S. 1045), paras 30, 33 and 28, respectively.
S. Rixen, ‘Befugnisse und Grenzen des staatlichen Infektionsschutzrechts’, in: M. Kloepfer (ed.), Pandemien als Herausforderung für die Rechtsordnung (Baden-Baden: Nomos Verlagsgesellschaft, 2011), pp. 67–84; A. Grüner, Biologische Katastrophen: Eine Herausforderung an den Rechtsstaat (Baden-Baden: Nomos Verlagsgesellschaft, 2017); J. Mers, Infektionsschutz im liberalen Rechtsstaat, (Baden-Baden: Nomos Verlagsgesellschaft, 2019).
Gostin, supra note 6, p. 10; W.K. Mariner, G.J. Annas and W.E. Parmet, ‘Pandemic Preparedness: A Return to the Rule of Law’, Drexel Law Review 1(2) (2009) 341–382, pp. 366–367; M. Kloepfer, ‘Einleitung’, in: M. Kloepfer (ed.), Pandemien als Herausforderung für die Rechtsordnung (Baden-Baden: Nomos Verlagsgesellschaft, 2011) pp. 19–20; Grüner, supra note 49, p. 290.
Campbell, supra note 4, p. 206.
Greene illustrates this: Greene, supra note 7, pp. 24–29.
See the elaboration of P. Thielbörger, ‘Germany – Federalism in Action’, in: M. Kettemann and K. Lachmayer (eds.), Pandemocracy in Europe: Power, Parliaments and People in Times of Covid-19 (Oxford: Bloomsbury Publishing, 2022) pp. 91–116.
D. Utrilla Fernández-Bermejo, ‘Soft Law Governance in Times of Coronavirus in Spain’, European Journal of Risk Regulation 12(1) (2021) 111–126, p. 112, DOI:
S. Platon, ‘Reinventing the wheel … and rolling over fundamental freedoms? The Covid-19 epidemic in France and the “State of Health Emergency”’, The Theory and Practice of Legislation 8(3) (2020) 293–309, pp. 298–299, DOI:
G. Sandhurst and A. Speaight, Pardonable in the Heat of Crisis – But We Must Urgently Return to the Rule of Law, available online at
See, e.g., Annas, supra note 6, p. 63; Rixen, supra note 49; W.E. Parmet, ‘Unprepared: Why Health Law Fails to Prepare Us for a Pandemic’, Journal of Health & Biomedical Law 2(2) (2006) 157–194.
In this respect, especially Annas’ analysis of the SARS epidemic is instructive, reaching the conclusion that: “Even totalitarian dictatorships like China cannot control their populations in epidemics by fear alone in the twenty-first century”, Annas, supra note 47, pp. 19–20.
Rixen, supra note 49, pp. 73–84.
Ibid.; Parmet, supra note 57, pp. 173–178.
Even in the circumstances of a health crisis one may pose Fuller’s question: “Does this institution, in a context of other institutions, create a pattern of living that is satisfying and worthy of man’s capacities?”: Fuller, supra note 37, p. 69.
It is by no means claimed that these are the only important considerations in public health. A comprehensive list could be adduced, including for example social justice, solidarity, effectiveness, etc. (I am grateful to an anonymous reviewer for their comment in this regard). But as the literature cited below shows, it cannot be doubted that these are two significant values, especially in Western societies and especially within the current pandemic context. The point is that demonstrating the law’s role in promoting these values, highlights its distinct, positive potential as a crisis management tool.
C. Scandurra, V. Bochicchio, P. Dolce, P. Valerio, B. Muzil and N.M. Maldonato, ‘Why people were less compliant with public health regulations during the second wave of the Covid-19 outbreak: The role of trust in governmental organizations, future anxiety, fatigue, and Covid-19 risk perception’, Current Psychology (2021) DOI:
Annas, supra note 47; Rixen, supra note 49, p. 83.
S. Holland, ‘Liberty, Public Health Ethics, and Policy Responses to Covid-19’, Humana Mente 14(40) (2021) 23–53.
F. Zimmerman, ‘Public Health Autonomy: A Critical Reappraisal’, Hastings Center Report 47(6) (2017) 38–45, DOI:
Annas, supra note 6; Mariner, Annas and Parmet supra note 50, pp. 354–355; Gostin supra note 6, 31–32; Rixen, supra note 49, pp. 69–70.
Winston, supra note 15, p. 27.
Ibid., pp. 27, 32.
W.J. Witteveen, ‘Rediscovering Fuller: An Introduction’, in W.J. Witteveen and W. van der Burg (eds.), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999) p. 23.
Fuller, supra note 13, p. 41.
Ibid., p. 53; see also: L.L. Fuller, ‘The Implicit Laws of Lawmaking’, in K.I. Winston (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (Revised Edition) (Oxford: Hart Publishing, 2001) pp. 178–180.
Fuller, supra note 13, p. 145.
For instance, “the notion of subjecting clarity to quantitative measure presents obvious difficulties”: Ibid., p. 43.
Scheuerman, supra note 4, p. 65.
Fuller, supra note 13, p. 40.
K.I. Winston, ‘Legislators and Liberty’, Law and Philosophy 13(3) (1994) 389–418, 491, pp. 390–391; for an argument against this interpretation, see: J. Waldron, ‘Why Law – Efficacy, Freedom or Fidelity?’, Law and Philosophy 13(3) (1994) 259–284, pp. 266–270.
L.L. Fuller, ‘Human Interaction and the Law’, in K.I. Winston (ed.), The Principles of Social Order: Selected Essays of Lon L. Fuller (Revised Edition) (Oxford: Hart Publishing, 2001), p. 254; Witteveen, supra note 70, p. 17.
Winston. supra note 15, pp. 53–54; L.L. Fuller, ‘Freedom as a Problem of Allocating Choice’, Proceedings of the American Philosophical Society 112(2) (1968) 101–106, p. 106.
Fuller, supra note 13, p. 210.
Ibid., p. 162.
Winston, supra note 77, pp. 401–402, 413–414.
Fuller, supra note 78, pp. 253–256. This view is also well illustrated by the story that Fuller tells of a tyrant, whose desire to effectively realise his own purposes leads him to grant his subjects greater and greater freedoms of choice: Fuller, supra note 79, pp. 105–106.
J. Waldron, supra note 77, p. 266.
Winston, supra note 77, pp. 413–417.
Fuller, supra note 13, p. 209.
Ibid., p. 209.
Waldron, supra note 77, p. 278.
Witteveen, supra note 70, p. 34; Fuller, supra note 13, pp. 39–41.
Fuller, supra note 13, p. 217.
Waldron, supra note 77; for a similar argument, see also: G.J. Postema ‘Implicit Law’, in: W.J. Witteveen and W. van der Burg (eds.), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999) p. 275.
Waldron, supra note 77, p. 275.
Ibid., p. 278.
Fuller, supra note 37, p. 66.