Pandemic as a “Composite Crisis” and Digital Phenomenon

Introduction to and Core Themes of a COVID-19 Essay Collection

Together with Jens Drolshammer, we just published a collection of essays as part of a transatlantic collaboration during the COVID-19 “shelter in place” period from March 16th to June 30th, 2020. The collection, written in German, is an experiment in real-time observation and reflection. The essays take a first look at the new realities at the intersection of pandemic risk, law, and digitization.

The observations build upon our long-standing interest in how the law — and lawyers — deal with “catastrophic risks”. The essays are tentative sketches and shared in the spirit of publicly accessible entries into our notebooks as working hypotheses that can be tested, adapted, and further developed over time.

This post provides an overview of the essays and summarizes some of the common threads among them, also in the sense of possible agenda for future and deeper discussion of our initial observations during the COVID-19 crisis.

Cover: Rebecca Smith

Please note: The following text blocks are machine-translated with only light-touch human editing.

Here’s an overview of the essays and some of the issues they address.

Essay I: Risk and Response — Responses to Risks: “Reality Lawyering in Times of Crises” (Jens Drolshammer)

This is a twin text to essay V in this collection which was already published in 2005 under the title “Risk and Response”. It takes up Richard Posner’s notion of “catastrophic risks” — including pandemics — and interprets this concept in the light of COVID-19. In section B.I., the essay focuses on the “reality lawyering in times of crises” as observed from the outside — mostly through the media — within the framework of government crisis management during this period. It tracks the ways in which Swiss security policy has dealt with risks that threaten the existence of the country. Section B.II describes new forms and greater frequencies of risks and “black swan” events since 2000 and highlights 12 essential characteristics of the pandemic as a “composite crisis”. Section C.I focuses on the possibilities of adding a strategic perspective to the activities of lawyers involved in the specific legal crisis management and section C.II identifies 28 legal issues that have become apparent during the observation period.

Essay II: “Digital Pandemic” and the Law: Approaches to a Global Phenomenon (Urs Gasser)

As an interdisciplinary contribution to the public debate written during the early phase of the pandemic (March 15 to April 15, 2020), this essay argues that COVID-19 can be understood not only as a biological-virological but also as an inherently digital phenomenon and thus differs from previous pandemics. This is especially true for life during the “lockdown” and with regard to the (Swiss) government’s management of the crisis, in which digital technologies and data play a formative role. The essay explores the question of how the legal system reacts to this “digital pandemic”, be it by applying existing legal norms, by creating new ones, or by using informational modes of regulation. The result is an initial and provisional “heat map” of legal issues, but also areas that have not received much attention. The questions of basic digital rights, next-generation data strategies, and the regulation of AI are identified as major design tasks for the future at the intersection of digitization, law, and pandemic.

Essay III: Reflections on Pandemics as a “Composite Crisis” (Verbundkrise) and Strategic Risk in the Digitally Networked Age (Urs Gasser and Jens Drolshammer)

This essay approaches COVID-19 as a manifestation of an “existential risk” and puts it into a historical perspective. Written in the period from April 20 to May 30, 2020, the text builds upon the preliminary thoughts shared in essays I, II, and V. The approach to the pandemic as a strategic risk and a special type of crisis is situated in the context of law, science, technology, and society. The essay reveals not only the long history of pandemics as a risk type but also alludes to the breadth and depth of literature that has dealt with the topic over the centuries from a wide range of disciplines. The second line of exploration leads back to the present day of COVID-19. Against the background of the historical consideration not only regarding the origin but also regarding the characteristics of COVID-19, two distinctive features are further discussed in this essay that surfaced in the preceding essays: COVID-19 as a “composite crisis” on the one hand and as “digital phenomenon” on the other.

Essay IV: Observations on the Role of Law when dealing with COVID-19 as “Composite Crisis” and “Digital Phenomenon” (Urs Gasser)

This essay builds on the initial thoughts offered in text III and focuses on the interplay between the pandemic and the law. Using COVID-19 related legal developments in Switzerland as a case study, the essay explores the role the law plays in dealing with the current crisis and examines the extent to which the composite crisis characteristics of the pandemic also shape the legal dimensions of the phenomenon. Adding to and partially updating text II, the essay also considers the way the law deals with the digital dimension of COVID-19 as its second distinguishing feature. The starting point is again the thesis that coping with the current pandemic is not only relevant from a legal perspective but that these practices are also inherently shaped by law. These two explorations are followed by a number of cross-sectional observations in which a several of strands of discussion are brought together and condensed in order to suggest initial “patterns” in the way the law is dealing with the pandemic — for example, with regard to the law’s modes of reaction, the question of the transparency of legal processes and actors, or the various activated functions of the legal system.

Essay V: Risk and Response — On the Necessity of Strategic Handling of Catastrophic Risks at the Intersection of Technological and Scientific Developments (Jens Drolshammer)

This text is the foundational essay the author wrote in 2005 during a research stay at Harvard Law School after the terrorist crisis of 9/11. It centers around “Catastrophic Risks” that endanger humanity, with a view to the potentialities of such crises far from the topicality of today's COVID-19 pandemic as a “composite crisis”. The text was written as a thank-you and birthday greeting to Jacques Santer, former President of the EU Commission, for the lecture “The Europe of Small States”, which he gave in 2000 in Zurich at an event organized by Homburger Attorneys-at-Law and where he was appointed honorary abbot and patron saint of the monastery La Claustra at the strategic location of a converted artillery fort on the Gotthard. The immediate occasion for the text was a book published in 2004 by Richard Posner entitled “Catastrophe — Risk and Response”. Posner radically posed the question of how to deal with scientifically recognized extreme risks that endanger the existence, or even humanity. He postulated an obligation for the sciences and politics — for the first time clearly also for the law and lawyers — to deal with these catastrophes systematically, foresightedly, and globally. The text paraphrases in section II. Posner’s responses to the question “what are catastrophic risks?” and “how catastrophic are they?”, and asks in III. “what has changed in dealing with catastrophic risks and why is so little done in this area?”, followed by section IV. “what is traditionally done with regard to major risks, including catastrophic risks?”, which transplants the questions to Switzerland and examines how Swiss security policy deals with such risks in its conceptualization, planning, and training. V. comments on the question “why is a strategic perspective in dealing with catastrophic risks also useful in the legal field? What could it consist of? And why are lawyers usually strategy-avers? Both Posner and the Swiss security policy include “pandemics” among the “catastrophic risks” covered.

Essay VI: Law is a Tool to Help Communities and Societies Reboot: A Transatlantic Conversation about COVID-19, Law, Social Justice and Education (Conversation with Martha Minow and John Palfrey)

A further element in this experimental essay series aimed at approaching COVID-19 as a phenomenon during the “lockdown” period is a transatlantic conversation with Martha Minow and John Palfrey on June 16, 2020. Martha Minow is 300th Anniversary University Professor at Harvard University and former Dean of Harvard Law School. John Palfrey is the President of the John D. and Catherine T. MacArthur Foundation. Previously he served as Head of School at Philips Academy, Andover, and as Henry N. Ess III Professor of Law and Vice Dean of Library and Information Resources at Harvard Law School. Both interlocutors share a deep commitment to human rights and the rule of law, are advocates of international academic cooperation, and are leading voices in national and international debates on the role of law, technology, and education in society. The conversation complements the topics covered in the essay collection by offering important transatlantic perspectives, and focuses on COVID-19 through the lens of social justice — a value that is central to much of the work at the Berkman Klein Center for Internet & Society at Harvard University, to which all four participants in the conversation have been connected in different roles and at different times in their careers.

The following section offers a (machine-based and only lightly edited) translation of the synthesis essay of the collection, which distills some of the cross-sectional themes emerging from the text collection.

Pandemic, risk, and law: The conceptual starting point for the essay series is the insight that the COVID-19 crisis is the occurrence of what Richard Posner called a “catastrophic risk” and Toby Ord most recently characterized as an “existential risk”. Building upon that line of work, two of the essays in the collection — authored by my colleague Jens Drolshammer— approach COVID-19 from the perspective of risk and risk response, with a focus on aspects of strategic risk management. A few takeaways from these reflections:

Pandemic risks can be understood as a subset of the “catastrophic risks” that endanger humanity. As such, as Posner argues, they trigger an obligation on the part of science, politics and above all, the law, to deal with these risks in a systematic, forward-looking and global manner. This includes risk prevention and risk preparation, but also questions of dealing with risk occurrence and risk communication. For example, Switzerland has been dealing with existential risks systematically since the 1970s, particularly in the context of national security policy.

During the COVID-19 crisis, the preparatory, strategic handling of disasters within the framework of Swiss security policy — including the “pandemic” type of crisis — serves as the conceptual basis for state crisis management. Conversely, current crisis management must be adapted continuously and in “real-time” to the special and formative characteristics of the COVID-19 pandemic. The special features of COVID-19 as a composite crisis (see below) are relevant to crisis management both from a management and legal point of view, and result in a multitude of unexpected design tasks at all levels of dealing with the global nature of the crisis.

Initial real-time observations help to identify a number of “strategic” areas of action and activity in current state crisis management against the background of the characteristics of COVID-19 (as a composite crisis). This concerns questions about issue- and crisis-adequate “mindset”, the generation of knowledge and establishment of interdisciplinarity, and the definition of optimal policies or questions about the appropriate consideration for all relevant stakeholder interests, to name a few examples.

In the sense of a further working hypothesis, the COVID-19 pandemic impacts a large number of strategic issues — including “legal issues” — which chronologically cover all phases of the pandemic, i.e. before, during and after the outbreak of the crisis. The “issues” that emerge are extremely diverse, as an initial list based on a journal that was updated daily with information from media reports shows. Legally relevant questions besiege almost all conceivable areas of life and existence. In a certain sense, and to put it more pointedly, during the COVID-19 crisis “law is in everything — or everywhere and at all times”, although the operation of law before and especially during the crisis has hardly been transparent and has only been accessible to a limited extent.

Government handling of “pandemics” as a strategic type of risk: Understanding COVID-19 as an established risk type, and more specifically as a subcategory of “catastrophic risks”, the essays are examining how states have been dealing with such risks in and by law. Using Switzerland as a case study, several hypotheses can be distilled from the essays, initially with a view towards risk prevention (Text III).

Pandemic risks as a subset of “catastrophic risks” have been identified for at least 20 years in the context of systematic, and sometimes governmental, risk analyses. The understanding, perception and assessment of this type of risk has changed, especially since SARS, as shown by a long series of expert reports and a rich scientific literature on the subject. At the same time, impact assessments have been carried out, which impressively demonstrate the enormous economic and social weight of this specific risk type and make it clear that pandemic risks, initially perceived as primary health risks, interact with various other risk types, and in some cases, reinforce each other.

Over the course of time, the pandemic risk has increased both as a matter of perception and objectively. There are various reasons for this, including increased travel and trading activity, higher residential density, poor hygienic conditions, climate change and other adverse factors. The same reasons point to a changing understanding of pandemics — moving away from a framing as a natural disaster towards a man-made disaster and ultimately towards an ecological network crisis. The potentially existence-threatening characteristic of pandemics continues to be recognized.

Due to the scope and severity of this risk type, states play a central role in dealing with pandemics. Historical approaches illustrate how, as early as the 14th century, northern Italian city-states introduced measures such as quarantine regulations and trade and travel restrictions to control epidemics and pandemics. Later, the internationalization of trade also led to increased international coordination, whereby the legal handling of this risk also became increasingly important and manifested itself at various levels (international, European, national).

At least in the recent past, government’s handling of epidemic or pandemic risks has been strongly focused on prevention from the point of view of health protection, as illustrated by the Swiss example. Once again, legal measures — particularly the development of the Epidemics Act in Switzerland — play a central role as a mechanism in dealing with pandemic risks, addressing questions of responsibility and collective action. In Switzerland, however, the government’s approach to pandemic risk management also includes instruments such as systematic risk analyses, national exercises (first in the military and then increasingly in the civil sector) and cross-divisional pandemic plans, to name a few.

These initial observations indicate that pandemic risks, at least in Switzerland, have been systematically identified and, from a strategic point of view, addressed in a multifaceted manner. It also becomes clear that health prevention measures have been the main focus, even though dealig with actual emergencies was always taken into account as well. Nonetheless, in the strategic dealing with pandemic risks, public health considerations have traditionally dominated over legal, economic or other considerations.

Against this background, it is instructive to examine COVID-19 from a real-time perspective and as a real-world manifestation of the abstract risk type “pandemic”. Although every pandemic is unique, a first examination shows that COVID-19 shows both familiar and potentially novel characteristics under today’s conditions of a globally and digitally networked world with regard to its origin, spread and effects. Across the essays, two features emerged, which seem remarkable.

One hypothesis is that the COVID-19 pandemic can be understood as a “composite crisis”, not only in terms of the conditions under which it developed, but also in terms of its real effects, which affects many areas of life and society and dominate them at least temporarily. These characteristics point away from a pandemic’s familiar historical context as predominantly a matter of public health towards an almost all-encompassing crisis characterized by complexity and uncertainty, which leads to an exponential growth of the relevant fields of crisis prevention and response.

A second characteristic of the COVID-19 pandemic that emerges from the observations in the essays is that it has an inherently digital dimension in terms of emergence and management. This “historical first” suggests that the pandemic should not only be understood as a biological-virological phenomenon, but also metaphorically as a “digital pandemic” in its socio-technological embedding. This opens up new problems and tensions which have so far received little attention when it comes to the strategic planning and governmental handling of pandemic risks, and therefore raise strategic questions for the law (more on this below). At the same time, the emphasis on the digital also highlights digital divides and participation gaps that will have to be addressed in the future.

Role of law when dealing with COVID-19 as a “composite crisis” and “digital phenomenon”: Against the background of the above-mentioned distinguishing features of COVID-19 as a “composite crisis” on the one hand and as the first “digital pandemic” on the other, the essays offer some initial observations on the role of law during the pandemic as an integral part of the state’s handling of the crisis (Text IV). Once again, Switzerland serves as a case study. From a birds-eye perspective, a number of working hypotheses emerge:

Even in the acute phase of the COVID-19 pandemic, the law and its actors are overshadowed by other social systems such as health and the economy. During the crisis, law and legal processes are not always systematically recognized in their importance and communicated publicly. Moreover, many of the legally relevant processes — especially in the private sector — are hardly visible from the outside and take place largely in a “black box”.

However, initial observations of the role of law at the time of COVID-19 — illustrated across the essays using examples of the emergency ordinances enacted by the Swiss Federal Council — make it clear that law at least in Switzerland is almost “omnipresent” and assumes a central steering role in dealing with this “total crisis”. The composite crisis character of COVID-19 is also reflected in the legal arena as evidenced by the broad range of areas of law affected by it, which extend far beyond health laws and regulations. Because of the partly unforeseeable legal consequences, the law is likely to be in “large-scale use” even after the crisis. At least in formal terms, law also defines the beginning and end of the crisis.

Due to the interconnected nature of the crisis, the law and its actors operate under conditions of complexity and uncertainty. The consequences of this complexity are visible in the legal environment, for example, in that it is not only a question of legal interventions and measures in dealing with COVID-19 as a health problem (primary measures), but that the law must also deal with the massive (economic, social, …) consequences of its own making (secondary measures). The various causal relationships between problem and solution/intervention and between primary and secondary measures are often unclear and express the conditions of uncertainty.

In addition to complexity and uncertainty, the legal system and its actors are under intense time pressure. This applies not only to the urgency of measures needed to interrupt the infection chain, but also to cushion the economic consequences and the frequency with which new scientific findings and other experiences have to be integrated into legal decisions. This leads to an extreme and unusually high cadence of legal adaptations from the point of view of legal certainty and raises difficult questions regarding the relationship between rapidly developing scientific knowledge and state action.

Looking at the digital dimension of the COVID-19 phenomenon (see next section), initial interpretative orders indicate that the legal “heat map” at the interface of pandemic, digital technologies and law primarily concerns areas where existing legal relationships must be adapted to the new circumstances — for example, by means of adjustments in contract law for labor or e-commerce. A real “hot spot” is data protection law, which is becoming the center of attention with the increase in the importance of data used to combat COVID-19 — illustrated by the example of digital “contact tracing”.

From the point of view of the two distinguishing features “composite crisis” and “digital phenomenon”, the legal handling of COVID-19 follows largely familiar patterns, whereby the application of the law remains dominant among private legal actors. At the same time — as can be observed from the emergency ordinances from the Federal Council — a large number of new legal norms are being enacted. It is noteworthy that, at least in the initial phase of the crisis, law enforcement appeared to play a subordinate role. In addition to these traditional forms of reaction, informal types of legally-relevant action are also emerging, such as “regulation by threat”, informal administrative action and, in particular, communication by public authorities that translates and concretizes the law.

When thinking about COVID-19, different functions of law are simultaneously activated. These include protective interventions — such as the prohibition of assembling in large groups — but also important compensatory mechanisms, for example in the form of economic rescue packages. Overall, the law assumes an important coordinating function when dealing with this interconnected crisis, including coordinating the behavior of various relevant legal actors and prioritizing the problem area on the time axis. In doing so, the law sometimes reaches its functional limits, for example with regard to questions of legitimacy under the conditions of emergency ordinances and in ensuring the coherence of the legal system.

In dealing with COVID-19 as a “composite crisis” and “digital phenomenon”, the legal system is repeatedly confronted with feedback loops, for instance with regard to the meta-requirements for the temporality of emergency law or the question of the constitutionality of emergency measures. It also must deal with interfaces to other systems of governance — as exemplified by “code is law” — and the role technology companies played in the context of “digital contact tracing”.

Interface: COVID-19, digitization, and law: From a thematic “deep dive” into the digital dimensions of COVID-19, which have already been mentioned several times, a series of real-time observations can be distilled concerning the interplay among the elements “pandemic”, “digitization”, and “law” (Text II) — which supplement and deepen the previous theses and provide possible starting points for further discussion:

The importance of the digital dimension of COVID-19, on the flipside, highlights the fact that not all people have the means and skills to participate in the digitally networked environment. Existing digital divides and participation gaps are becoming even more visible under the conditions of “lockdown” and “social distancing” and might continue to widen as a result of the crisis — with socio-economic consequences beyond the pandemic.

Despite the relative novelty of the inherent digital dimensions of the pandemic, there has been a relative “courant normal” in terms of corresponding legal issues in this thematic area. However, certain shortcomings in and of the legal system have become apparent, at least with regard to Switzerland, specifically with regard to the “business continuity” of the legal system itself — keyword: limited digital access to the justice system. Also, with regard to the “digital readiness” of the education system for distance learning a series of legal and legal policy questions have merged that will require further analysis.

In addition to these possible areas of concern, a preliminary stocktaking, under real-time conditions, also indicates socially relevant problems that have received no or insufficient legal attention. In particular, this applies to the problem of (systematic) misinformation on the Internet perpetrated by strategic actors, and to discrimination issues, which are related to algorithms and are only gradually becoming relevant to the context of COVID-19, but are likely to become more important in the future course of the pandemic, for example with regard to the allocation of vaccines or the use of other scarce resources.

The legal system also follows familiar paths in the way it reacts to digital phenomena: The “default” mode of subsumption dominates, and new legal norms have only been enacted in a few instances (in Switzerland, for example, in response to issues around digital signatures, electronic assemblies, and virtual court hearings). As already mentioned, possible structural deficits have become apparent with regard to law enforcement.

At the intersection of pandemic, digitization, and law, there is an emphasis on informal and “political” actions between key players (example: regulators and technology companies), while the legal qualification of these action remains unclear and potentially problematic from a rule of law and due process viewpoint.

In addition to these shortcomings, the essays indicate that there is a need for further discussion of the evolution of international law as far as said intersection is concerned. Examples include the scope of basic digital rights, including the right to (broadband) Internet access. One of the future tasks, which has a higher priority due to the COVID-19 crisis, concerns new approaches to data, which take up not only data protection issues, but also broader issues of information governance — including the question of data sharing to solve major social problems, or the question of data solidarity among people.

“Back to the Future” and Outlook: The observations shared in the essay series were inspired by the need to deal strategically with “catastrophic risks” in and by law, whereby the foundational text (Text V) was written long before COVID-19. However, some of the topics on the agenda can be remembered for the future (Text I as well as Text VI) and against the backdrop of our real-time observations during the COVID-19 “Lockdown”.

A strategic perspective on “catastrophic risks” — including in form of a composite crisis such as COVID-19 — seems also useful from a legal perspective. Without being able to already draw firm normative conclusions, early observations in dealing with COVID-19 point to the value of a forward-looking, integrated and strategic risk management approach pursued by the state, including methods of risk analysis and assessment — and all anchored in the rule of law.

The questions of strategic thinking, strategic perspective, and strategy in and by law, also in the area of “catastrophic risks”, are underexplored and have greater urgency in the light of COVID-19. This marks an area for future research and engagement to which all lawyers who are active in the crisis should contribute. The notes made available in the essay collection point to at least some of the essential “strategic” areas of action and activity in dealing with “catastrophic risks”.

In order for the legal system to continue to be effective in the future, and in the light of the increasing frequency with which pandemics and similar crises have come into existence, it is not only necessary to strategically plan and deal with the interconnected issues brought forth in this collection of texts, but also to shape the future forces at play in order to safeguard freedoms, trust and justice. As a basic prerequisite for this work, a new “mindset” also of legal actors is needed in order to be able to identify and ultimately overcome the legal challenges that are at stake in dealing with “catastrophic risks”.

The promotion of this “mindset” under the new realities of a complex, uncertain and digitally networked world is one of the major design tasks for legal education at universities and for the practical training of lawyers over the coming decades. It must be ensured that learning goes in both directions, and is essential that young people in particular continue to ask uncomfortable questions about our responsibility during current and future crises, and pave the way towards developing new strategies in response to the big challenges of our time.

The initial observations shared in this essay series in light of COVID-19 and at the above-mentioned intersection of pandemic risks, law, and digitization, hope to contribute to a body of experiences that needs to be examined in greater detail over the years to come as we cope with the new realities brought by this pandemic with its unforeseeable consequences for the future. The issue of risks that threaten society and humanity will continue to concern us all. As argued in this essay series, COVID-19 should be understood as a wake-up call for strategic thinking and action — also in and through law.

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