Populations, Pandemics, and Politics

by Martha LA Fineman

Image via Pixabay

The pandemic has created a series of practical and policy challenges for the entities and individuals deemed responsible for public health and welfare. The way in which those challenges have been approached reveals the assumptions that underlie the allocation of social welfare responsibility in a society. Of particular interest are the norms or standards and values governing the relationship between the individual and the state and its institutions. These norms historically reflect the distinction between what is considered appropriately of “public” concern and what is deemed primarily a “private” matter. This line between the public and the private serves to allocate responsibility, with private matters often being assign an individual or personal responsibility. Our understanding of the private also enhances the concept of individual rights as constituting necessary bulwarks against perceived inappropriate or invasive state action. At the same time, the construction of the private constrains notions of collective welfare and responsibility.

Discussions about social justice and governmental responsibility are often framed in abstract terms, referencing aspirational concepts such as equality or autonomy. While this is particularly evident in law, grand narratives also shape policies related to public health and welfare, as well as many other areas that overlap with law. Of specific interest in the context of this collection is the idealized rendition of the body that permeates these grand narratives. In law, as well as in political theory, philosophy, economics, and ethics, the body is abstracted to the point that its material realities and their implications for social policy can be conveniently ignored. The paradigmatic human is routinely cast as an independent, liberty-seeking, fully functioning adult. Laws and policy governing the relationships among individuals have been designed around this autonomous being, who is deemed a “rational actor,” capable of negotiation, bargaining, and giving informed consent. The laws that define the relationship between the individual and the state also reflect the dominance of this individually oriented perspective: any state action is presumed to carry with it the possibility of intrusion on individual liberty and must be narrowly justified. The constitutional position of the state is ideally perceived as limited and restrained, while the abstracted notion of the specific legal subject is taken out of social relationships and freed from social responsibility. The individual thus conceived is not concerned with (in fact does not recognize) his own dependency or the need to consider the general wellbeing of society, let alone the needs of the next generation in making his “personal choices” or assessing what is of collective responsibility. A failure to thrive in the current ideological system is assumed to lie with the individual, successes is a personal responsibility.

In many ways the reality of what might be called the “pandemic body” has complicated this neat division between public and private responsibility for individual wellbeing. The individual body in this pandemic has been revealed to be universally susceptible to Covid-19, even if the extent and degree of damage may differ across individuals. The pandemic also calls for much more than a mere individual response. It necessitates collective action as well and conclusively reveals the extent of the interrelatedness and dependence that is inherent in any society.

The validity of political paradigms that valorize individual liberty, assume rationality, and rely on personal responsibility to resolve economic and other difficulties has increasingly been questioned in the wake of pandemic related social and individual crises.4 The pandemic has disrupted, even discredited, dominant political narratives, which minimized or ridiculed the need for safety nets and other social welfare policies. Covid-19 has forced a consideration of the inescapably and uncomfortably concrete into public consciousness, opening up the possibility for a revisioning of our thinking about both individual and societal requirements and responsibilities. Fortunately, vulnerability theory presents a constructive and needed alternative to the traditional paradigm for thinking about the nature of the state and its social institutions and relationships in this post-pandemic reality.

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Fineman, Martha Albertson, Populations, Pandemics, and Politics (September 9, 2021). International Journal of Discrimination and the Law, Forthcoming , Available at SSRN: https://ssrn.com/abstract=3920513 or http://dx.doi.org/10.2139/ssrn.3920513

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