COVID-19 & The Law : Mapping Legal Complexity in Times of Radical Uncertainty
“This storm will pass. But the choices we make now could change our lives for years to come.” Yuval Noah Harari
OVID-19 has undoubtedly catalyzed a defining period in our modern collective experience. We have had an unique opportunity to watch the exponential trajectory of viral infection and the complexity of its impact across multiple sectors in multiple societies worldwide. In early January 2020, the World Health Organization (WHO) notified its Member States about an outbreak of pneumonia of unknown cause in Wuhan city, China. In February WHO gave this new disease a name — Coronavirus disease 2019 (COVID-19) and on 11 March 2020 WHO declared the outbreak of COVID-19 a global pandemic. Now, in June 2020 countries worldwide are progressing at varying rates along the COVID curve, with some countries declaring themselves Coronavirus free and preparing to ease the lockdown and others more cautious anticipating second and third waves.
COVID-19, like any crisis worth its name, has become a lever for radical change.
The virus is a demonstrably powerful driver of changes in the law and legal practice, creating an urgent need for coordinated capacity for independent research and response to these changes.
In order to address the immediate COVID-19 threat within their jurisdictions, governments have been making policy decisions, issuing new guidelines, orders and laws on a daily, sometimes on even an hourly basis in the earliest stages of this pandemic. In less than a month after the WHO declaration, over 2 billion people were in a complete lockdown. Heavy punishments in some states for breaking curfew and lockdown were extremes which citizens had to face. New surveillance measures monitoring movement and tracking location of citizens, which are being touted as critical to manage possible second and third waves, are raising questions around whether fundamental human rights are being infringed. Without proper justification, due process and sunset clauses in place, the proportionality of such measures is questionable. However, of even more concern, is the subtle but accelerated accumulation of data in the hands of a few with issues such as who holds the data, where, for how long, for what purpose percolating within a vast regulatory lacuna.
At the same time, states are introducing new social support mechanisms, economic relief packages propping up businesses, industries and stock markets and innovative economic measures like varieties of Universal Basic Income (UBI) for the first time. These economic policies resulting in trillions of dollars being pumped into the system, on the surface risks hyperinflation in years to come but, more troubling than this, exposes what appears now to be a crucial fallacy in traditional criticisms of social sector spending as being unrealistic and unsustainable. At an even more opaque level, the massive increase of fiat currency into economies reveals some arbitrariness in the accepted rules underpinning the global monetary system.
Suffice to say, legal system change is occurring and policies which would have ordinarily been stymied by partisan political principle (or posturing) and which would have taken years to pass through intensive bureaucratic and legislative processes are now, in a post-COVID-19 world, being undertaken in hours. This volatility within the public policy space combined with newly agile legislative processes produces circumstances which go beyond the complicated to the complex as it intervenes and seeks to influence in the midst of a global pandemic with unknown unknowns. This legal complexity is exacerbated by reason of the sheer number of variables at play, interacting in a crunched period of time, the divers levels at which policy changes are being made (global, regional, national and local) and the variety of policy experimentation, policy implementers and bottom-up socio-cultural responses.
Within representative democracies, this complexity challenges the already delicate balance being held between the need for transparency and accountability in public decision making on the one hand and responsive, efficient and effective government on the other. This balance has now been significantly disrupted by the demand for firm, clear, authoritative guidance from national leadership which can sometimes come at the cost of due process. Citizens worldwide with varying degrees of acquiescence across cultures have allowed encroachments on their civic freedoms as governments balance their duty to protect the public in the midst of a public health crisis with their duty to protect fundamental rights and freedoms.
It is against this backdrop that attention to Harrari’s warning is essential. The choices we as individuals and our governments make now could change our lives for years to come. Whilst this period of uncertainty presents an unprecedented opportunity to reimagine how the world might emerge from this crisis and reorganize priorities for a safer, more just and ecologically resilient future, it also could go the other way, with the rise of authoritarianism at the expense of fundamental human rights.
Questions arise as to how do lawyers, public policy experts, academics, businesses and governments begin to navigate the uncertainties that this emergent legal complexity produces? How do we make sense of what is happening? How do we begin to identify the underlying systemic and structural issues? How do we decide what are effective policy responses so that we are better prepared for future global crises? And how do we act coherently across borders to facilitate the emergence of a safer, more just, more ecologically resilient future?
Many legal and public policy experts have been analysing COVID-19 policy responses within their particular niches e.g. data protection and privacy, employment liability issues, workplace safety, criminal justice, procurement and trade issues, immigration and border control, human rights etc. Others have focused on national and regional level analyses. Some are focusing at the global level within particular niches and across multiple indicators. All are important contributions to our collective sense-making in times of radical uncertainty.
Complexity-Informed Legal System Change — The Meta-Legal Shift
At the Future Law Institute, we are working at the intersection of complexity theory and the law, to build new forms of meta-legal collaboration transnationally to address global challenges. We recognize that while tactical and local responses remain relevant and critical to address immediate threats, longer term objectives of identifying relationships and patterns over time, creating transnational collaborations at governmental, civil society, academic, business and professional levels, so that collectively we can be better prepared for future global crises, require the recognition that the whole is greater than the sum of its parts.
Systems thinking research methodologies help us to make sense of relationships between component parts in a system, to map influences and to develop non-linear theories of causation. At its core, systems-thinking is about analysing relationships and interactions between components within a system. We are seeing early adoption of these approaches in the fields such as public health, and natural and social sciences, but only more recently in the legal and public policy spaces. In the context of COVID-19 it is becoming increasingly clear that despite similar policies being implemented across jurisdictions, the effectiveness of these policies and health outcomes have not been similar.
Significant strides have been made by the Oxford COVID-19 Government Response Tracker (OxCGRT) which aims to help decision-makers and citizens understand the robustness of governmental responses in a consistent way, aiding efforts to fight the pandemic. The OxCGRT systematically collects information on several different common policy responses governments have taken, scores the stringency of such measures, and aggregates these scores into a common Stringency Index. Just recently we were tickled to see a tiny twin island state in the Caribbean, Trinidad and Tobago topping the OxCGRT as the country based on “stringency measures” most ready to ease the lockdown. When Future Law analysed OxCGRT stringency data against COVID-19 mortality rates, a strong statistical correlation was revealed between early implementation of stringency measures relating to civil restrictions and lower mortality rates. All of this is useful and will stimulate further research questions and help policymakers to make better decisions at local levels in the future.
Making sense of the effectiveness of national COVID-19 policy responses is an attempt to make sense of a Complex Adaptive System (CAS) operating within a CAS (global) interacting with other CAS (regional and national). Other emerging variables requiring mapping against policy responses include epidemiological data, population density, latitude and temperature, underlying comorbidities within populations, age of the population, the robustness of existing health care systems, social determinants of health, and underlying structural inequalities, etc and the list goes on.
At Future Law we are exploring these complex relationships through our Global COVID-19 Policy Response (GCPR) Meta-Legal Research Initiative. We believe that there is much to learn at the intersections of these relationships. The Meta-Legal approach crucially recognizes the “system of systems” feature of the law, its heterogeneity, and interrelatedness between the component parts of national legal systems including the lawmakers, lawyers, judges, agencies, the laws and policies themselves, socio-cultural systems, economic and political systems, along with multi-disciplinary impacts and interconnections between law and society. It also seeks to map the relationship between global and transnational level responses and variables. In the COVID-19 context for example the interaction between nation-states in trade, border regulation and immigration, the interaction of the WHO and nation-states and private philanthropic donors, or the role of the WTO in trade and procurement. This type of meta- sensemaking requires experimentation with new research methodologies. The Meta-legal approach for understanding legal change engages a slower trajectory than traditional legal research methods, seeking first to make sense of the changes that are happening not only within component parts of the system but at a meta-level mapping all policy responses worldwide and exploring the relationships and patterns over time. This allows for the exploration of new types of questions that traditional legal research does not attempt to answer.
For example, as we reflect on the impact of COVID-19 meta-data, one confounding feature being thrown up, and for which to date there is no simple, linear cause and effect relationship, is the fact that high-income countries in the Global North are disproportionately negatively impacted by this pandemic than in the Global South. According to the data, low-income and lower-middle-income countries (LICs and LMICs) account for almost half of the global population but they make up only 2 percent of the global death toll attributed to COVID-19 (Schellekens and Sourrouille, May 2020). Some argue the data emanating from LICs and LMICs is unreliable. However, this argument becomes more and more unsustainable as excess death rate figures are failing to budge significantly. Other theories on the anticipation of second and third waves which will even the playing field will be challenged if the impact on these countries in the Global South continues on its current trajectory.
Looked at linearly there is no simple cause and effect relationship emerging to explain this phenomenon. Although, we observe from our preliminary analyses that latitude is certainly emerging as one of the strongest correlations with high mortality rates.
Perhaps the answer to this problematique, lies in identifying new research questions within a “systems in systems” approach, exploring the nature of the relationships and interactions between national-level COVID-19 policy responses and other complex systems, including but not limited to, the strength of rule of law in a particular jurisdiction, levels of public trust and public anger, leadership empathy, nature and structure of policy communications, media independence and credibility, enforcement capabilities, levels of disinformation within the society, and transnational governance arrangements.
We have begun exploring one such relationship more deeply — the relationship between the strength of the Rule of Law within a jurisdiction and COVID-19 mortality rates. Fig. 4.0 sets out to examine if a correlation exists between the Rule of Law and COVID-19 death rates by comparing the World Justice Project (WJP) Rule of Law index on the x axis with COVID-19 total mortality rates (OurWorldInData) as a percentage of the total population, plotted exponentially on the y axis. Each circular data point represents a country, and the data point size relates to the total population of that country. Interestingly, a strong positive correlation is apparent which suggests that the higher the rule of law index of a country, the higher the rate of COVID-19 mortality in the general population. However, on this evidence alone, it cannot be inferred, nor is it here suggested, that there is a causal relationship between these two measures. We are now examining new questions to better understand this correlation.
Why The Meta-Legal Shift
COVID-19 presents humankind with a global crisis unprecedented for our current generation. The need for coordination of production and supply of emergency goods, works and services, the protection of fundamental human rights from executive abuse and the mitigation of impacts within marginalised populations present urgent and pressing demands on governments worldwide.
Global/collective governance mechanisms to meet this transnational challenge have been proven weak and ineffective. Our response to COVID-19 so far has been primarily actioned by national government policy responses worldwide taken in silos and in many respects competitively with deleterious impacts. National approaches to a transnational challenge are compromising our collective progress. A new way of understanding ourselves, in relation to not only our human-invented bordered geographical spaces but within a finite planetary system, is urgently required for our collective sustainable evolution.
As science and society make the shift from a mechanistic world view to embracing a more systemic one, so too must the law. The new science of the interconnectedness of life demands that we understand systems complexity and renders traditional nation-centric legal modes and methods demonstrably outdated and out of step with nature and society.
Mapping legal complexity is at its core about mapping systems of power since law is the mechanism through which power is negotiated within and between societies. If we are mapping legal complexity in respect of COVID-19 policy responses worldwide, then we are also mapping the new systems of power at global, regional, national and intra-regional levels.
We accept that this is an ambitious endeavour. That said, in the space of less than two months we, at Future Law through GCPR, have already progressed further than we could have imagined. We have built a growing and engaged transnational network of over 130 legal and policy professionals and systems-thinkers from 45 countries, meeting on research sprints on a weekly basis, building a global database of COVID-19 policy responses and sharing learnings through COVID-19 Country Spotlights into the variety and severity of lockdown policies, surveillance measures and economic and social relief packages worldwide. We are uniquely positioned to embark on comparative meta-legal research.
As our GCPR database has grown to include data from over 190 countries, very quickly we have learned that this is as much (if not more) technological as it is a legal research project. Our growing database expanded our empirical possibilities to the point where we have been invited to explore building computational models of global and national-level legal systems, their complexity and their systemic risks. We adapted quickly and are now working alongside technologists to understand better how to employ novel and sophisticated technical tools (such as OCR, lemmatization, CLIR etc) that are enabling mass data compilations, the defining of hierarchical “trees” between various legal sources and designing “Legal Maps” for network behaviour monitoring. Such deep analysis of the data can further lead towards cross-referencing, discovery of new categories and interconnectedness within the ‘’system of systems’’, which creates more layers of complexity, opens the door to advanced, comparative, meta-legal research and possible simulations of policy responses in the event of a new wave of epidemic or even new type of pandemic.
Our latest learnings are now corralling us to organise ourselves into regional and national hubs, developing in the United States, the Balkan region, India, Kenya and the Caribbean. We are also establishing Networked (Knowledge Leveraging) Communities of Practice with our emerging areas of focus being (i) Rule of Law with an emphasis on access to information, anti-corruption and human rights, (ii) Surveillance Measures, Data Security & Privacy (iii) Global Law (Development & Practice) (iv) Law & Technology and (v) Global Supply Chains/International Trade/Public Procurement. Our objectives in our Communities of Practice are to deepen cross-jurisdictional learning, identify High-Leverage Strategic Intervention Points within subject-matter niches to raise public awareness and to inform public advocacy campaigns, legislative lobby movements and in appropriate cases, pursue litigation to make progress on our normative collective evolutionary agenda to contribute to a safer, more just, more ecologically resilient future. We will explore our five emerging areas of focus in future publications in the COVID-19 & The Future of Law Series.
Building this Together
Developing this “Meta-Legal” approach requires collaboration across disciplines, building multicultural competencies and forming a common language through which a variety of different types of thinkers and actors can communicate and act together. The world is changing rapidly and instead of reacting to change we must find new ways of being and doing which allow us to embrace these shifts while remaining intentional about the safer, more just and ecologically resilient future which is wanting to emerge. The Future Law Institute invites partners, collaborators and contributors to the Global Covid-19 Policy Response Meta-Legal Research Initiative. For more information visit www.futurelaw.io and www.gcpr.io Do reach out to us if you or your organisation can help us develop this transnational collective action project.
