The sovereign is the one who decides on the exception. Coronavirus is today’s exception. The COVID-19 pandemic which is gripping the world has induced states to take unprecedented measures not seen before in peacetime; draconian curbing of civil liberties, which go as far to restrict basic free movement of persons, and extensive de-facto nationalisation of key sectors of the economy. This experience provides a rare opportunity for us to gaze directly at the often concealed power of the sovereign and to re-evaluate the role of the state in contemporary political life.

On 9 March 2020, the government of Italy became the first European government to announce a national quarantine, restricting the movement of the population in response to the spread of COVID-19. Further measures declared that those who violate the lock-down face fines between €400 to €3,000 or up to three months imprisonment. On 16 March 2020, the President of France outlined measures limiting the travel of citizens to a strict minimum; all journeys necessitate the completion of a form which includes name, address, date of birth, and reasons for travel. Breaking the rules in the decree could lead to a fine of €135, with multiple violations resulting in a fine of €3700 and up to six months in prison. On Monday 23 March 2020 the UK government introduced new measures to tackle the spread of Coronavirus, including a ban on public gatherings of more than two people, which if violated, would be subject to on-the-spot fine of £30 pounds; escalating to criminal proceedings and a summary conviction for a failure to comply. Similar restrictions were also enacted contemporaneously in other EU member states.

All of these actions came into force with immediate effect, before the enactment of any written law passed by a legislative body. For example, in the UK, the Coronavirus Act 2020 received royal assent at 5:30pm on 25 March and became law. However, multiple reports exist of police enforcing non-essential travel, social distancing, and breaking up gatherings of more than two people – prior to this law taking effect.

These exceptional circumstances reveal the true power of the sovereign; the state engages in an action beyond of the rule of law and decides upon a matter outside any mechanism of accountability. This is the hallmark of sovereign power, it is not derived from a higher source; it is a secularised theology and it has no objective legal restriction, as it is outside of normal jurisprudence. Faced with an exception, the established social contract governing the implicit relationship between state and citizen is reshaped to serve an immediate purpose, and the only binding constraint on executive power becomes that of operational feasibility.

Today’s circumstance illustrates a state of exception. The COVID-19 pandemic has elicited responses from governments which can only be understood in terms of a paradigmatic shift; expression of the state as a laissez-faire establishment has been swiftly upended in favour of direct and commanding state intervention. For example, on 30 March 2020 President Trump signed off the largest financial stimulus package in the history of the United States. These measures amounted to approximately two trillion dollars; a little under 10% of US annual GDP. Additionally, the 1950 Defense Production Act, which gives the president the power to force private industries to create items required for national defense, was activated alongside an accompanying executive order which reclassified ventilators, and other key medical supplies, as vital to national defense. Moreover, on 23 March 2020 the UK government announced de-facto nationalisation of the passenger rail
network. It also announced that VAT payments would be suspended until the next quarter and that workers – and later, self-employed workers – would have 80% of their wage earnings guaranteed by the government in the event of job insecurity. Similar guarantees have been made in France, where up to 70% of salaries of workers will be covered by government grants and corporate tax, payroll tax, and national insurance contributions have all be deferred for the next three months.

These large scale interventions demonstrate that the state can engage in overt transformative action, which transcends outright economic objectives, when there is a threat to fundamental structures of order. However, European states today face numerous threats to fundamental structures of order on multiple fronts. These may come in the form the ecological catastrophe, caused by climate change, or they may manifest themselves as soft power, increasingly exerted by states with divergent interests. The defining feature which differentiates the Coronavirus predicament from the aforementioned examples is the pace at which it is occurring; nonetheless, these are all ultimately existential issues which can only be resolved at the highest level of the polity.

For example, the collective action problem of climate change poses potentially cataclysmic consequences. However, political party manifestos which propose to legally curb (if only temporarily) the consumption patterns of individuals to sustainable levels, such that the carrying capacity of the planet can be met, are unlikely to be a vote winner; a truly effectual solution, at least on the domestic level, may need to take place outside typical norms of legality and accountability. Additionally, states without liberal constitutions or strong separations of power, often make little attempt to conceal the sovereign; they often exist in a perpetual state of exception, and accordingly, utilise sovereign power more frequently for the purposes of securing geopolitical objectives. If those states are competent in directing that power to weaken European institutions and interests, it is appropriate, and just, to call upon sovereign power to provide a proportionate response as means of an effective safeguard.

However, the state of exception, through which the sovereign acts, is not preordained – it is driven by political will and perceptions. Existential issues, such as those highlighted here, fundamentally mandate lifting the lid on the sovereign in order to provide effective solutions. The COVID-19 pandemic can provide useful and timely paradigm shift in recalibrating European sentiment to foster clear perceptions of threats to fundamental structures of orders; thereby giving implicit democratic consent to the state to pursue actions required to solve these overarching problems, and ultimately protecting a future platform for political selfactualisation.

References:

• Agamben (2005) State of Exception. The Univeristy of Chichago Press, Chichago.
• Carl Schmitt (1934) Political Theology: Four Chapters on the Concept of Sovereignty. Translation by
  George Schwab 1985.
• Humphreys (2006) Legalizing Lawlessness: On Giorgio Agamben’s State of Exception. The European
  Journal of International Law Vol. 17
• https://www.railfreight.com/policy/2020/03/23/uk-partial-rail-nationalisation-to-battle-coronavirus/?gdpr=accept
• https://www.npr.org/2020/03/18/818069722/trump-invokes-a-cold-war-relic-the-defense-production-act-forcoronavirus-
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• https://www.bbc.co.uk/news/uk-52053914
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• https://www.skadden.com/insights/publications/2020/03/frances-lockdown-and-economic-measures
• https://metro.co.uk/2020/03/24/police-break-groups-two-people-coronavirus-lockdown-12448367/
• https://twitter.com/DerbysPolice/status/1243168931503882241
• https://www.bbc.co.uk/news/uk-england-northamptonshire-52004297
• https://www.liverpoolecho.co.uk/news/uk-world-news/police-tell-drivers-headed-peak-17979204
• https://services.parliament.uk/bills/2019-21/coronavirus.html