The COVID-19 Crisis: Legal, Policy and Ethical Challenges: An Account

On the 5 June 2020, 45 speakers contributed to an Oxford University Law Faculty Webinar on ‘The COVID-19 Crisis: Legal, Policy and Ethical Challenges’. The webinar was organised by Anne Davies, Luca Enriques, Ben McFarlane and myself—a diverse group of scholars reflecting the widespread implications of the worldwide Covid-19 pandemic. The sessions, which covered a range of legal topics and legal issues, are available online here. They range across many of the diverse areas of scholarship within the Law Faculty. 

In each session, speakers and attendees identify and grapple with the challenges posed by the pandemic. While the subject matter of those sessions varied there were some constant themes that resonated throughout the day.

The COVID-19 pandemic, like other pandemics before it, leads to a situation of what the philosopher of science, Lorraine Daston describes as ‘ground-zero empiricism’, in which the uncertainties over the nature of the virus and its health, economic social, legal impacts means that ‘almost everything is up for grabs’ in understanding the virus and its consequences. The presentations showed the benefits of exploring in greater depth legal ideas such as equality, freedom, health, and competition. Many of the presentations also exposed the impacts of the virus that are not easily visible in regard to issues such as disability, debt restructuring, intellectual property, and mental health. The work in these sessions also showed the value of comparative, jurisprudential, doctrinal and interdisciplinary scholarship as well as connecting scholarship to practice.

There are many issues that were raised throughout the day but one that kept being returned to was precarity. The language used varied. Speakers talked of vulnerability, risk, and uncertainty. The issues varied as well. Sessions explored the precariousness of the labour market, the vulnerability of individuals during lockdown and the fragility of banks and businesses. What is clear is the pandemic has heightened existing precariousness, which could be the product of markets, of tenancies, of past tragedies, and of inequalities. The pandemic thus highlights the innate but often hidden instabilities of modern economic and social life.

The pandemic is also creating new sources of risk. These are not just health risks. Most obviously there are also human rights and economic risks created by lockdown measures. But there are also risks created by moving dispute resolution online, by forcing people to stay in their homes, by changing the way we deliver health services, by introducing track and trace measures, and by creating new forms of data banks. Some of these risks are short term and others are more long term.

And it is in relation to these different forms of precarity that the role of law becomes particularly significant. Law creates stability and calculability in the face of disruption. It frames how we think about these different forms of precarity and what legal action is taken in regard to them. Whilst dealing with diverse subject matter, all of the sessions showed that a conceptually rigorous and practically effective response to the pandemic depends on legal imagination.

Legal imagination entails two things. The first is actively thinking about existing legal concepts and doctrines to understand their purpose so as to understand how COVID-19 affects them. This might be in regard to the ‘wrongful trading’ law in bankruptcy or legal equality protections or the nature of executive legal accountability. The pandemic is forcing us to interrogate what the law is and what it is protecting.

The second aspect of legal imagination is to determine how the law and legal thinking can and should evolve in relation to the pandemic. How do we think about new legal assemblages such as data trusts? Should we introduce new legal ideas such as resilience? Where should our legal analysis begin and end? None of this can be an act in wishful thinking detached from reality. It must be connected with what the existing law is and the values underpinning it.
As shown by the challenges explored by these 45 speakers, and the questions they received, none of that is easy. It requires much in the way of careful thought in regard to a vast range of different areas of law with a constant eye on legal detail and an assiduous commitment to placing law in its social, economic and historical context. Overall, the sessions in this webinar underscore the importance of what Stefan Collini describes as the ‘disciplined and illimitable’ thinking that goes on in universities.

Liz Fisher is Professor of Environmental Law at Corpus Christi College and the Faculty of Law.