Law and the political stakes of global crises: Lessons from development practice for a coronavirus world

• Published date: 01 July 2023
• Author: Deval Desai
• Date: 01 July 2023
• DOI: http://doi.org/10.1111/lapo.12203

ORIGINAL ARTICLE

Law and the political stakes of global crises: Lessons

from development practice for a coronavirus world

Deval Desai

Edinburgh Law School, Edinburgh, UK

Correspondence

Deval Desai, Edinburgh Law School, South

Bridge, Edinburgh EH8 9YL, UK.

Email: ddesai@ed.ac.uk

Funding information

Swiss National Science Foundation

Abstract

Law has translated the coronavirus crisis into politically

salient forms in people’s lives, from states of emergency,

to border closures, to mask mandates. Yet political the-

ory work on these forms has focused on constraining

arbitrary state power. In this paper, I try to broaden this

focus. Substantively, I argue that policy and its imple-

mentation also matter to how we theorize the role of law

in crises, in terms of how we understand the political

power of society and its relationship to the state. Meth-

odologically, I argue that thinking about law in this way

is more than a complement to or replacement for think-

ing about constraints on arbitrariness. Rather, different

forms of thinking about law and crisis should constantly

be used to critique each other in order to pursue the sorts

of legal innovations required by geomobile and inter-

connected crises. Given that the current pandemic and its

broader consequences are still unfolding, I turn to devel-

opment policy and practice to demonstrate the process

and consequence of such ongoing critique in action.

Studying rule of law reforms—including during the West

African Ebola crisis—I show how practitioners continu-

ally reimagined law in ways that facilitated ongoing legal

innovation that could adapt to the politics of the crisis.

1|INTRODUCTION

Why is the relationship between law and crisis important? At the level of political theory, law is

a way in which a crisis becomes politically salient in people’s lives, by translating the crisis into

familiar terms with political purchase, such as authority and right, or even states of emergency

and vaccine mandates. In more abstract terms, “crisis”refers to conditions of rupture that

DOI: 10.1111/lapo.12203

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

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©2023 The Author. Law & Policy published by University of Denver and Wiley Periodicals LLC.

Law & Policy. 2023;45:273–291. wileyonlinelibrary.com/journal/lapo 273

demand political formulation (Kohn, 2008, pp. 265–6).

1

Terms such as “exception”or “emer-

gency”are thus examples of political formulations that are legal in nature.

2

As ruptures, crises demand imaginative new legal forms to make sense of them, whether

these forms are altogether novel or are novel combinations of existing laws.

3

Yet, I argue, prev-

ailing political-theoretic rubrics for law in the coronavirus crisis have often returned to con-

straints on the exercise of arbitrary state power, such as emergency, exceptionality, and

constitutionalism (Section 2). In this paper, I try to broaden these rubrics. Substantively, I argue

that policy and its implementation also matter to how we theorize the role of law in crises. As

some have begun to argue of the coronavirus crisis, we can only see and understand its

politics—a combination of inequality and mutual vulnerability—through an engagement with

administration in its various forms. For Lorenzini, the coronavirus crisis and administrative

responses to it “reveal[] that our society structurally relies on the incessant production of differ-

ential vulnerability and social inequalities”(Lorenzini, 2021, S44). For Schubert, the biopolitics

of the crisis is one “of differentiated vulnerability.”This vulnerability “stem[s] from the multi-

plicity of different social positions and their respective patterns of vulnerability”

(Schubert, 2022, p. 102). I contribute here by suggesting that the political stakes of thinking

about law in terms of policy and implementation might be found not only in how it has pro-

duced the politics of the crisis, but also in how it shapes the political power of society, and its

relationship to the state, as they respond to the crisis (Section 3).

Methodologically, I argue that thinking administratively about law in this way is more than

a complement to or replacement for thinking about law in terms of constraints on arbitrary

power. Rather, different forms of thinking about law in crisis can and should be used to critique

one another in order to pursue the sorts of legal innovations required by geomobile and inter-

connected crises. Given that the current pandemic and its broader consequences are still

unfolding, I turn to development policy and practice to demonstrate the process and conse-

quence of such ongoing critique in action. I focus on “rule of law reform”practitioners, who

produce law in the context of crisis and provide experiences to learn from. I go on to examine

their response to the West African Ebola crisis and show how they continually developed and

critiqued legal responses in ways that allowed them to adapt to the evolving politics of that cri-

sis (Section 4). Finally, I extend both of these arguments—about the importance of the adminis-

trative dimensions of law to theorizing the politics of crisis, and about the political importance

of subjecting different legal forms to mutual critique in crisis contexts—to the coronavirus crisis

(Section 5).

2|LAW AND CRISIS TODAY

States worldwide have grappled with what legal form to give to the COVID-19 crisis. Many

turned to states of emergency, which citizens experienced through everything from border clo-

sures to vaccine mandates to lockdowns (Greene, 2020; Olewe, 2020; Verfassungsblog, 2020).

These states of emergency have receded unevenly, over space and through time, with the possi-

bility of their reimposition in the future.

As a result, “[c]oncepts that may have seemed obscure and or [sic] to have fallen out of one

academic fashion, such as biopolitics or ‘naked life,’have leapt from the page and become sud-

denly irrepressibly pertinent to our everyday experiences …[such as the] extreme, authoritarian

measures taken to confront the pandemic”(Sotiris, 2020).

In late-February 2020, Giorgio Agamben himself weighed in, arguing that the Italian

state had participated in, and taken advantage of, “the invention of an epidemic”

(Agamben, 2020a) to install and expand a form of emergency rule.

4

In a subsequent post, he

went on to argue:

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