Stay Safe, Protect the Health System, Save Lives

While quarantined and watching content on public TV, Australian viewers would have been confronted with the following slogan or mantra: “Stay home. Protect our health system. Save lives.” It replicates, with a slight variant, the UK slogan: “Stay safe. Protect the NHS. Save lives.” These slogans contain three words that have a long and complex history of interpretation in political theory: safety, protection, and salvation. Interestingly, these slogans omit the cognate word “security”. If we are to begin to understand the legal and political implications of Covid-19, it may be helpful to make some distinctions among these similar sounding concepts because they cover seismic shifts in our understanding of public law that have been underway for a long time. The predicament brought about by the Covid-19 pandemic may have brought these concepts together in a new constellation that reveals the underlying logic of security that determines the way our governments work.

The order to “stay home” came from the state, and it came in an abrupt, sudden and for many people terrifying form. The command imposed a variety of styles of “lockdown” around the world in which citizens were forced to stay in their homes, from the draconian policy first implemented in Wuhan through the stern but measured German policy to the outright laissez-faire of the Swedes. However, the remarkable fact, pointed out by many commentators, is that most people obeyed the command without protest, not simply out of sheer terror for the consequences of being infected, but as a display of “civility.” Staying at home, keeping social distance, were adopted as a form of polished self-conduct, rejected only at the fringes of civil society, by Leftist anarchists as much as Right-wing libertarians, not to mention neo-fascists. Some commentators have interpreted this docility as a further indication that “voluntary servitude” far from being a contradiction in terms is the lived reality in mass societies of control. Others have seen it as a demonstration that the People can be a responsible and solidary collective actor who can be “trusted” to do the right thing. They see it as the return into the public sphere of a non-populist People, as a hopeful sign for the democratic struggle against authoritarian populism or illiberal democracy. Nonetheless, the strange phenomenon of a people who “empowers” itself in and through the speedy and easy acceptance of a massive curtailment of their rights merits further reflection.

The justification for the lockdown measures was that the Covid-19 pandemic brought about a global “state of emergency” that called for “urgent” measures to “flatten the curve” of infections. As always, there have been some jurists who have brought up the question as to whether the “state of emergency” was declared in a “constitutional” way or not. But no one questions that liberal democratic constitutions give governments the faculty to declare states of exception to cope with such emergencies, as the plethora of literature dedicated to “constitutional dictatorship” after 9/11 had already shown. More interesting is to inquire after the legal-political concept that is behind this faculty of the modern state. The governmental reaction to Covid-19 — closing down public assemblies of all kinds, forcing people to stay indoors night and day, requiring special permits to move around, and so on – shares the same features of a “coup d’État”. (Indeed, in recent Latin American history, the “coup d’État” or “golpe de Estado”, was employed to “extirpate Communism”, which was itself conceived through the metaphor of a pandemic.) This dramatic, theatrical gesture on the part of the state was invented in the 17^thcentury; its motto is that “necessity silences the laws.” That is, the “urgency”, the “clear and present” danger allows the state to set aside some of its civil laws and liberties until the threat, in this case the coronavirus, is extinguished.

Carl Schmitt, infamously, defined sovereignty as the public authority to decide on the state of exception. This was the flipside of the claim that all law-making power was concentrated in the hands of the sovereign for the sake of protecting its subjects (protego ergo obligo). He thus drew a tight bond between state sovereignty and its capacity for “coup d’États”. Michel Foucault, instead, proposed that such “coup d’États” were better understood as a tactic employed by a modern “art of government,” known as “reason of state,” that placed the “national interest” above the protection of the rights of individuals. For reason of state, the highest aim of government is the salvation of the state – but the way it achieves this goal is by providing for the welfare of its population. For Foucault, the coup d’État is about the government’s ongoing efforts to identify an urgency or a necessity that befalls a population such that the attention and the resources of society are turned around towards the state, not the people as a body of right-bearing citizens, as what stands in need to be saved. As he puts it, the coup d’État “is the assertion of raison d’Etat… that asserts that the state must be saved”.[1] Paradoxically, understood in this way, the coup d’État rejects the 17^thcentury maxim of sovereignty employed by Hobbes: salus populi ultima lex esto, the safety of the people is the ultimate law.[2] Necessity and urgency, the traits of all “crises”, thus became a permanent source of justification employed by governments to strengthen the state rather than provide protection to the lives of individuals.

When Giorgio Agamben suggested that the governmental reaction to Covid-19 had the makings of a coup d’État he shocked many people. I think Agamben’s diagnostic was correct, but I disagree with him that the purpose of the coup d’État was to assert the sovereignty of the state as the ultimate arbiter of who gets to live and who gets to die. I think that reading misjudges the cruel plight of “frontline workers” such as doctors and nurses who operated under conditions of triage for lack of proper equipment. In my opinion, what the state was trying to save of itself was not its “sovereignty” — that phantasm of neo-populism — but its capacity to attend to the well-being of its population: the coup d’État was necessary to “protect the NHS”.

The meaning of “protection” in this slogan cannot be understood according to the Hobbesian logic of sovereignty whose reason for existing is the “safety” of the people. Rather, “protecting our health system” reveals that we are living in a society of “security.”[3]As Foucault defines it, this is a society in which “power has populations as its target, political economy as its major form of knowledge, and apparatuses of security as its essential technical instrument”.[4]

The shift from the sovereign maxim of salus populi to the new governmental maxim of “protect our health system” is striking and indicates a major shift in the character of power underway since several centuries, a shift from the sovereign power to protect by “taking life” to the new “biopower” to “foster life”.[5]  There were no public health systems to “protect” back in the 17^thcentury. Not surprisingly, many commentators have compared favourably the European public health system to the U.S. privatized health system when coping with the pandemic. They have suggested that the enduring lesson from Covid-19 will be just that: the (welfare) state needs to be strengthened for it to preserve a resilient public health system. But these commentators fail to register that such “protection” manifests the priority assigned to the security of a population over the safety of individual lives. Security and safety are now clearly opposed. This is perhaps shown in its clearest form in relation to the much-discussed Swedish “model” to deal with the coronavirus: the Swedish government was honest, or naïve enough to actually declare publicly the biopolitical character of its art of governing. In order to maintain the “security” of the population — and that means, its perception of “well-being” and “happiness” — a decision was taken not to attend to the “safety” of its people.

We can now return to our slogan and unpack the meaning of its last phrase: “save lives”. As shown above, the state engages in a “coup d’État” in order to “protect” its public health institutions from the danger of being overwhelmed by infected patients, thus running out of beds with artificial respirators, and exposing itself to the nightmarish spectacle of people dying in the hospitals corridors, on the streets outside of their homes, in abandoned age-care facilities, etc. From the perspective of government, this tragedy does not register as a failure on the part of the sovereign state to give reality to the equal status of citizens before the law; it is not fazed by the disproportionate impact of the disease on those who do not receive equal treatment. Rather, the tragedy is mainly registered as evidence of the weakness of the state in providing for security, that is, in its capacity to “making live” its population. “Protect our health system” so as to “save lives” can thus be translated to mean: protect our police so that it can “see to a live, active, productive man… the role of the police is to supply [human beings] with a little extra life – and, by so doing, supply the state with a little extra strength…. That people survive, live and even do better than just that: this is what the police has to ensure.”[6]

Right from the start of the current crisis, economists (joined by meta-ethical philosophers specialized in the trolley car problem) started discussing the alternative between “saving lives” and “saving livelihoods.” Commentators immediately emphasized the “economic cost” of the lockdown and led some to formulate the dilemma of when to “open up” the economy again as a statistical calculation: how much does saving the life of an elderly citizen cost in terms of lost jobs and thus a diminished “livelihood” for the population on average? And is this expenditure worth it? The above analysis suggests that this was never a real alternative: a constitutional coup d’État was required in order to strengthen part of the police system, that is, the health system, whose purpose is not to attend to the “safety” of individual lives but to the “security” – well-being and happiness – of a population understood in economic terms. The protection of the health system and the preservation of the government of security had from the start of the crisis an underlying economic motivation, but one that required resuscitating the moribund sovereign state through the coup d’État and the strict obedience to its emergency decrees. The return of the sovereign state is encapsulated in the ambiguity of  the last part of the slogan, “save lives”, which reminds us the fundamental role of sovereign power, assuring the right to life, while keeping in reserve its real meaning of “saving livelihoods”.

Indeed, the return of the sovereign is not about the safety of life — the “war” against the virus being, for now, only a metaphor to reawaken the sleeping sovereign from its neo-liberal induced sleep – but about its role as lender of last resort. The state “saves lives” not by going to war but by going into debt. The logic of security, in Foucault’s sense, is always an economic one: life, for biopower, is always costed. The real issue is that the only collective actor who can “afford” to finance the population’s well-being is the sovereign state as a lender of last resort that keeps the economy afloat, and in this way “fosters the life” the population. (Whether this lender of last resort for this crisis will be the United States of America or China remains to be seen.) Hence, the drive to re-open the economy despite the continued threat posed by the virus to the health of individuals, but not to the “well-being” of the population understood as an economic-statistical construction, was always the end-game of the emergency measures. Calling the endpoint of the crisis a “new normal” suggests that we are not returning to a “normal” state understood as the opposite of a state of “emergency,” one that is guaranteed by the rule of law. Rather, the “novelty” of this “normality” is that government may never again regain its constitutional veneer, and safety may have been sacrificed, once and for all, on the altar of security.

The UK government, to the dismay of many and in an effort to reach the promised land of the “new normal” recently changed its slogan to “Stay alert, control the virus, save lives.” It is too early to know whether this new interpretation of salus populi risks breaking up the country as some politicians have warned.[7] For sure, it plunged citizens into an understandable state of confusion, since “alertness” connotes the kind of messaging previously employed to deal with threats of terror attacks after 9/11 rather than containing the spread of a virus. The new slogan may signal that the outcome of the pandemic is that our well-being has now become a matter for national security.