Emergency: an undefined and largely unrestrained conception

Emergency and Constitutional Law theorists concentrate on two key questions: (1) whether emergency could be defined by law, particularly categorizing triggering factors of different forms of crises and their governing mechanism in legal terms; (2) whether emergency powers could be regulated by the principles of legality and constitutionalism. Scholars have shared a prolonged traditional commitment toward in-definability of emergency, leading to underdeveloped typology of emergency situations in the constitutions. Starting from Carl Schmitt observing “no legal norm can foresee them (emergencies) or constrain in advance the measures needed to confront them” (Schmitt Reference Schmitt2005). While Schmitt supports indefinability of emergency due to unpredictable nature of crises and emergency powers as the mark of sovereignty (Schmitt Reference Schmitt2005); Locke supports prerogative emergency power to identify and manage different forms of crises (Locke Reference Locke1988). With theoretical support of indefinability of emergency, the constitutional conception of emergency remains opaque, radical, and unbridled; till date no constitution could identify a conclusive list of crises that justify use of emergency powers, while nearly every constitution has ensured extreme power concentration beyond the control of legality during emergencies. An undefined or loosely defined emergency provision allows sovereign to use emergency as an opportunity to determine unalarming events as emergencies, overlook the opposites, and more importantly use broad and inappropriate emergency power to a technically different kind of emergency. Without a comprehensive list of critical events, the sovereign relies on narratives in support of broad emergency powers such as war, internal disturbance, and public order crisis to govern through technically specific crises such as pandemics. To use broad emergency powers and justify their actions, sovereign often resort to narratives of considering pandemic or public health crisis as “act of God,” “act of war,” “act of outsiders,” and “hygiene-sanitation disorder causing internal disturbance,” and so on.

Theorists have maintained a conservative attitude on the question of legality of emergency powers. Early constitutional liberalists denied legality as it will limit sovereign's acts against crises – John Locke, David Hume, Santi Romano, and William Blackstone were highly attuned to the limitation of law in dealing with events that disrupt the regular order (Sarat Reference Sarat2010). Schmitt's claim of emergency powers beyond legality – “Every political order ultimately presupposes the existence of an extralegal, absolutist, dictatorial power- embodied in the person of the sovereign- recognized by his ability to decide on the exception” (Schmitt Reference Schmitt2005) prevailed over larger critical legal thinking (Chua and Lee Reference Chua, Lee and Ramraj2021) and realist scholarships (Sarat Reference Sarat2010). However, the normative theorists remained committed to legality and offered reconstruction of emergency provisions under strict compliance of the principles of rule of law. The theoretical debate on legality of emergency powers could be classified in three archetype models of emergency powers; each of these models accommodates different degree of narrativized emergency governance.

1. i. The Extra-Legal Model (ELM) denies legality as it allows sovereign to go outside the legal mechanism during emergency, thereby justifies wider suspension of fundamental rights. Lockean model of prerogatives (Locke Reference Locke1988) and Oren Gross's ELM (Gross Reference Gross2006) are the illustrations of ELM in reference to traditional and modern legal systems respectively. Gross asserts that there is no need to identify the criteria when emergency is severe enough to make extra-legal powers legitimate as it should be left to the discretion of officials to decide and once the emergency is over the extra-legal actions must be submitted to public judgment or ratification making public the ultimate judge of its validity. ELM empowers sovereign to determine discretionary and act upon the crises, the discretion is often justified by the state-sponsored narratives to act extra-legally in the times of narrativized crisis.

2. ii. The Business as Usual (Legality) Model mandates that exceptional and temporary regimes wherein ordinary norms no longer apply, needs to be according to the law. The legality model believes in containment of emergency powers through pure legality by denying the existence of a legal category of exception and claiming that law's resource can accommodate any kind of crisis. David Dyzenhaus (Fijalkowski and Dyzenhaus Reference Fijalkowski and Dyzenhaus2007) objects Gross's ELM on compulsion of legality and argues if we are not committed to governing through law, we will lead two unsatisfactory positions: either as internal realist – undermining law's claim to authority by creating a veneer of legality or as external realist – establishing sovereign power beyond any constraint of law (Fijalkowski and Dyzenhaus Reference Fijalkowski and Dyzenhaus2007). The legality model objects narratives to drive emergency regimes, as it mandates that narratives could create veneer of legality in the names of necessity, however the model does not prescribe typology of emergency situations that could be recognized by law.

3. iii. Neo-Roman Model (NRM) by Bruce Ackerman (Ackerman Reference Ackerman2004) concentrates on modern emergency institutions and justification inspired from archetype of Roman commissarial dictatorship. Ackerman criticizes Gross' ELM for moving outside the law as it will undermine rule of law and once officials acted outside law they will tempt to stay or move outside the law as often as they can (Ackerman Reference Ackerman2004). He argues for a super majoritarian escalator requiring a prompt legislative endorsement to a declared state of emergency and determining different states of emergency. NRM partially replaces narratives with definitions of different states of emergencies including public health emergencies, however the model does not prescribe beyond legislative restraints on emergency powers, allowing narratives to facilitate extra-legality of emergency powers.

The questions of definition, categorization, classification, and constraints on emergency powers lack theoretical consensus, resulting in extremely wide, undefined, and largely unrestrained emergency powers across the constitutions around the world. States are keen to employ these broad emergency powers irrespective of the nature of crises, as these powers allow states to govern the crisis beyond legality. The state-built and propagate narratives are critical for the state to acquire and impose broad emergency powers particularly during the pandemics; the next part of this article theoretically and historically investigates how narratives shapes pandemic governance across pandemics.

Narratives: filling up the gaps within the definition and legality of emergency

During the normal times, states draw their legitimacy through Constitutions on evolved principles of individual rights and social justice; however, during emergency situations, states' legitimacy orients from their capacity to handle crises. States strategically use narratives to legitimize and propagate their rationale for opting emergency powers to govern through the crisis. The undefined emergency powers regarding the triggering factors of emergencies further enhances roles of narratives to invoke broad emergency powers. The vacuum generated by undefined and largely unrestrained emergency provisions allows state-built narratives to determine the use of exceptional power particularly during pandemics or public health crises. For example, more than 90% of all constitutions contain emergency provisions (Bjørnskov and Voigt Reference Bjørnskov and Voigt2022); out of that 68% recognize “war,” “external aggression,” or “international conflict” as triggering factors of emergency; “internal disturbance,” “economic unrest,” and “natural calamity” are the other prominent grounds of emergency (Elkins Reference Elkins2009), while “pandemic” or “public health crisis” is scarcely mentioned as the ground of constitutional emergency (Ginsberg Reference Ginsberg2020). Thus, at the times of pandemics, states often resort to emergency powers dedicated to handle war or internal crisis or natural calamity situations with “act of war,” “act of God,” or “act of outsider” narrative in order to justify the use of broad emergency powers.

Contemporary legal scholars (Brooks Reference Brooks2005; Scheppele Reference Scheppele1989; White Reference White1974) have highlighted an intensified dynamics between law and narratives, as Wharton and Miller emphasize, “narrative and law do not encounter each other accidentally but are ineluctably intertwined” (Wharton and Miller Reference Wharton and Miller2019), particularly during exceptional times of crises. The narratives help state to replace legality with intuitions, anecdotes, and ad-hoc theorization of facts, circumstances, and outcomes. These narratives allow the state to step outside the ordinary course of law to acquire and employ extraordinary power to counter the extraordinary event. The usual actors to question the narrative-driven governance, such as legislatures, press, and courts also yield for an enabled sovereign to govern through the emergency. Through narrative-based governance, the sovereign redraws standards of social, cultural, and individual behaviors and persuades decision-makers to mold legal mechanism and public policy to govern through pandemics.

To understand how narratives help state to invoke constitutional and extra-constitutional emergency powers during pandemics, I have used Narrative Policy Framework (NPF) poineered by Jones and Radaelli (Reference Jones and Radaelli2015). The NPF approach allows me to dissect narratives-driven emergency powers during pandemics on three factors: settings to acquire broad emergency powers, determining characters of the pandemic narratives, and assigning plots to emergency protocols to enforce bodily, social, and fiscal sanctions.

1. i. Settings are based on the primary context of contagion which could potentially harm people; states often determine the threat of contagion as “acts of God,” “act of war,” or “act of outsiders” to acquire and justify broad emergency powers. Due to these narratives, pandemic governance is susceptible to overestimation or underestimation of contagion threat thereby resulting into misgovernance of the pandemic. These narratives also empower sovereign to act beyond legality to govern through the pandemic with absolutist powers.

2. ii. Characters of pandemics are determined and classified according to the narrative as victims, antagonists, and protagonists. Narratives conveniently allow sovereign to characterize the antagonists of contagion – for example, narratives such as “act of outsiders” or “local sanitation-hygiene disorder” presuppose foreigners, traders, and native populations as the antagonists. The identification of antagonists and protagonist is the critical for determining blames and credits in the narratives-driven emergency governance. As per the narrative often a particular racial, religious, caste, or national group is conveniently characterized as the antagonists of the pandemic. Narratives also allow sovereign to place itself as the chief protagonist of the pandemic narrative at the core and peripheral levels, while downplaying other factors against the contagion.

3. iii. Plots situate the setting and characters in time and space, and empower protagonists to act upon contagion, often resorting to extraordinary powers against perceived antagonists. Plots redraw the pandemic-appropriate social-cultural and individual behaviors and reshape characters' morality. Plots are actionable pandemic protocols flexing state power over lives, liberty, and economy of individuals and society by imposing bodily, social, and fiscal sanctions.

The narratives not only shape states' outlook toward pandemics but also shape individual, social, cultural, and economic behaviors by formulating alterable standards of social discipline to shape subject morality by calibrating and coordinating social relationships to achieve the desired results at collective level through security modality. In the next part, the article explores how various narratives have shaped governance in different pandemics.

The great plague pandemic

The bacterium Yersinia pestis caused the deadliest pandemic of human history – the great plague pandemic killed around 70–100 million people over the years (Perry and Fetherson Reference Perry and Fetherson1997). The plague pandemic appeared in several episodic waves over centuries from early-age plague episodes in the ancient Greek and Roman empires as early as 432 BCE to the bubonic plague episodes in the late fourteenth century in Europe (Little Reference Little and Little2006; Mark Reference Mark2018; Meier Reference Meier2016). With limited documentary evidence particularly on the governance of the early plague pandemic, I will rely on secondary accounts covering social-economic-security impact of this enormous pandemic in two parts: the early plague episodes and the Black Death episodes.

The cholera pandemic

Vibrio cholerae toxigenic bacterium caused one of the longest-sustaining pandemics in human history – the Cholera pandemic. The epidemiologists and historians estimated the origin of Cholera in the eastern part of British India (the Ganga-Brahmaputra delta) (Cooper and Crosby Reference Cooper and Crosby1973; Lockhart et al. Reference Lockhart, Wachtel, Reynolds and Reynolds1979; Rogers Reference Rogers1926). The metrological and sanitary conditions in the region were extensively criticized for the origin, incubation, and dissemination of the contagion, leading to erroneous name shaming of the pandemic as the Indian Cholera or Asian Cholera. Most of the contemporary literature referred the contagion a consequence of sanitation and hygiene habits of Indians. The name-shaming was part of the narrative-building process to vindicate the real culprit of the pandemic, which was colonial maladministration rather than mere Indian metrological conditions and hygiene habits. Modern scientific studies (Arnold Reference Arnold1991, Reference Arnold1993; Hamlin Reference Hamlin2009; Harrison Reference Harrison2013; Ranger and Slack Reference Ranger and Slack1992) suggest that Indians have been familiar with Cholera-like disease for centuries and with prolonged exposure Indians in the region would have acquired natural herd immunity to the contagion or learned to live with it (Hamlin Reference Hamlin2009; Playter Reference Playter1893). This status-quo was disrupted by the East Indian Company's seizure of Bengal (Eastern India) in 1757, as it enforced ruthless exploitation of agricultural and handicraft laborers contributing biggest famine in human history and unprecedented migration in India (Chandavarkar Reference Chandavarkar1992; Houston Reference Houston2022). The unprecedented famine and migration exposed Indians from various regions to the contagion specific to eastern India, which led to more than 15 million deaths in India between 1817 and 1865, and more than 23 million more death during 1865 and 1899 (Arnold Reference Arnold1993).

Despite the numbers and far-reaching consequences, the British colonial government underplayed the pandemic and took no measures until British lives were at risk. The colonial government did not impose emergency powers during the pandemic as it would have generated security and economic risks to the government and instead governed the pandemic with narratives such as “local sanitation-hygiene disease” and “act of God.” The “local sanitation-hygiene disease” narrative was the predominant narrative of coloniality of blaming the native habits; however, the governing narrative revolved around propagating social narrative toward pandemic as “act of God.” These narratives allowed the colonial government to determine the plot for highly non-interventionalist approach toward the pandemic. The plot was based on the belief that a public health intervention may affect Indian religious and social sentiments which may trigger resistance against the foreign rule. Following the rebellion of 1857, the colonial government has maintained a non-interventionist approach to the religious-social-cultural beliefs of Indians, which remained instrumental during the outbreak. The “act of God” narrative generated the setting to foster government's indifference and inertia to intervene, while many Indians acting on divine interventions remained superstitious, and the pilgrimages and religious sites emerged as super-spreader of the contagion (Heaton Reference Heaton2021). During cholera the Indian society followed “act of God” narrative and the colonial government fostered the same along with propagating contagion as “local sanitation-hygiene disease” to justify non-interventionalist approach toward the pandemic. Under the settings and plots of these narratives, colonial government determined the characters of Cholera pandemic publicizing poor sanitation conditions, metrology, and ecology as the primary antagonists. On the basis of these narratives, colonial authorities hyphened a direct connection between cholera infection and sanitary-hygiene situations in India to establish a cultural and moral critique of colonized community (Harrison Reference Harrison2013).

The narrative of “sanitation and hygiene disease” led to the misconception of considering cholera as a local disease due to hygiene conditions in India. This misconception rendered the world completely unprepared for a truly global pandemic. The cholera reached Europe in 1821 and the contagion spread through maritime, land, and train routes to every part of Europe. By the time, cholera reached Britain, the mandatory quarantine and cordon protocols enforced by the Act of 1751 were substantially reduced under the pressure of lobbyists and traders. The Quarantine Acts of 1805, 1806, 1810, and 1811 further reduced the quarantine period and abolished the cordon system (McDonald Reference McDonald1951). These acts also increased extraordinary bureaucratic discretion, giving space for corruption and non-compliance, rendering the protocols largely ineffective. The British parliament passed the Quarantine Act of 1825 based on the narrative that cholera is a “local-sanitation-hygiene disease,” thereby abolishing the sanitary regulations and quarantine requirements of the previous acts. Britain and the rest of Europe paid an extremely heavy price for misunderstanding and misrepresenting cholera as local disease of Indians. After the initial havoc of cholera, the narrative to govern pandemic substantially changed from being “local hygiene-sanitation disease” to “public health emergency.” While cholera governance in India was highly non-interventionalist, the European states governed it with the emergency powers. The British parliament passed the Public Health Act of 1848 refocusing on quarantines, social distancing, and lockdowns, the act also introduced an interventionalist approach toward sanitation, for example, statutory duty of the state to build covered sewage and treatment of waste. It also established the British Port Sanitary Authority – a statutory administrative body to inspect and impose a quarantine on suspected contagion bearers. The British model of pandemic governance based on the Public Health Act 1848 was a balanced model, replacing militarized power with expertise-dominated executive power for screening and quarantining on one front and state intervention in sanitation and hygiene at another front. The cholera pandemic governance demonstrates willful omissions, inaccurate planning, and unscientific deductions with capricious laws and policies due to states' excessive reliance on narratives developed to promote partisan interests and objectives. Different narratives provided setting to justify different approaches toward the contagion – “act of God” and “divine intervention” narratives led to highly non-interventionalist approach in colonial India, and local hygiene-sanitation disease led to negation of contagion in Britain and rest of Europe.

The influenza pandemic

The influenza pandemic was the fastest-spreading pandemic of human history; most modest estimates suggest that more than 21 million people lost their lives within a decade of the contagion (Spinney Reference Spinney2018). The origin of Influenza is contested – some researchers suggest that the influenza emerged from the USA and swept around the world in three waves: first in war-ravaged Europe and America, second in Asia and North Africa, and third in Australia and New Zealand (Killingray and Phillips Reference Killingray and Phillips2003).

The influenza pandemic's co-existence with the world war empowered states to govern it with war within a war narrative to justify continuous and unrestrained use of emergency powers. Additionally, the narrative fostered combatant states to negate the contagion by underreporting infections and deaths while focusing on the war efforts. The narrative generated setting for misinformation and mistrust between governing and governed; for example, two most affected combatant states Britain and USA initially reported the outbreak as “ordinary influenza propagated by different names” (Gunn, Craddock, and Giles-Vernick Reference Gunn, Craddock and Giles-Vernick2010); most of the combatant states heavily censored the press and public information (Spinney Reference Spinney2018), for example, German government propagated a misinformed study of the war pestilences that would imperil the troops in every territory through which they advanced (Outka Reference Outka2020; Smallman-Raynor Reference Smallman-Raynor2004). The “war within a war” narrative drove influenza governance in the USA, forming the plot of negation toward the contagion, resulting in complete absence of federal planning and provincial coordination during the contagion. During the initial waves, while city authorities were overwhelmed with cases of contagion and death, the federal and provincial governments were focused on war efforts. In Philadelphia, the city authority organized “The Liberty Loan Parade” to raise funds for war efforts, accumulating 200,000 people at the peak of the pandemic on September 28, 1918 – neither federal nor provincial governments intervened against the parade under nationalist agenda of war efforts – the parade turned out to be the super-spreader, causing 12,000 deaths in next few months. The war within a war narrative allowed federal government to negate the contagion and determine antagonists and protagonists of the pandemic, “while exposing the fragility of American optimism” (Bristow and White Reference Bristow and White2020).

Spain being a non-combatant state developed a unique “public health emergency” narrative to govern the influenza pandemic. Post cholera, Spain legislated the Public Health Act of 1885 to contain the spread of so-called “exotic disease” by establishing multi-disciplinary institutions for sanitation, hygiene, and disease control at municipal, provincial, and national levels (Grabuleda Teixidor Reference Grabuleda Teixidor2003). The narrative of public health emergency empowered executive to acquire specific emergency powers equipped to handle public heath crises with some restraint of legality. The pandemic-specific emergency power helped Spain to build institutions for both critical and non-critical phases of pandemics, involving executive, public health, and political authorities. The general instruction on public health (1904) created permanent health offices responsible for on-spot inspection, restructured the advisory boards (for disease outbreaks), and merged executive and medical bodies within the political authority of the Minister of Interior. The instruction was perhaps the first legal mechanism combining executive, medical, and political consultations in decision-making at the national level (minister of interior), provincial level (Boards), and municipal level (Mayors). Though the institutional organization was pathbreaking, but narrative of public health emergency concentrated excessive discretionary powers to executive leading to partisan and arbitrary applications of pandemic protocols (Marset Campos Reference Marset Campos2008); for example, while public teaching institutions were closed in anticipation of the pandemic but the private remained open and functional, on one hand football clubs and stadiums were strictly restricted while massive religious demonstrations were regular feature in Spain (Gunn, Craddock, and Giles-Vernick Reference Gunn, Craddock and Giles-Vernick2010). In spite of that the Spanish government did not change peace-time law trajectory to war-time trajectory that let a free flow of press and public information on the contagion. Spain was one of the first countries to report cases of influenza contagion of immigrant workers returning from combatant states, the non-Spanish European press used these cases to inaccurately dub the influenza pandemic as “Spanish Flu.” This was another example of a stigmatization narrative deeply embedded in pandemic governance over the centuries.

Influenza's coexistence with the war largely influenced pandemic governance as most states concentrated on war efforts while influenza was creating havoc at the domestic front. To negate the pandemic, states used “war within a war” narrative to establish pandemic just as another front of war and justified exercise of war-like emergency powers. The war narrative also justified state's unhindered attention to the war efforts, while underplaying, underreporting, and negating the influenza contagion. Through this narrative war opponents were characterized as the antagonists, and military, state, and institutions as the protagonists. The “war within a war” narrative fostered the settings for unqualified emergency powers to control press and other sources of information regarding contagion, leading to an uninformed, unscientific, and uncoordinated pandemic governance. During influenza the public could trust nothing, knew nothing, and did nothing to save themselves while the scientific investigators had no clue whether to identify the pathogen or ignore it, the epidemiologists often misrepresented and miscalculated the contagion while the legislation to contain the spread was outdated, outmaneuvered, and outplayed by war politics. Illinois Health News (November 1918) perfectly captures the agony of pandemacy during Influenza: