TRIPS institutes a sensible framework for countries to work out the just bounds of intellectual property.
If you had just arrived in America for the first time in early March of this year from, say, the steppes of central Asia, you could have been forgiven for wondering whether all the hype about America as the bastion of liberal democracy was a bit bogus. Let’s suppose our new immigrant, Sam, just off the last flight from Stanistan and yearning to breathe free, wanted to inform himself about the way our government worked from day to day. He begins to peruse the New York Times and watches CNN. He would surely be surprised, perhaps shocked. Expecting the sweet land of liberty, he might conclude that he had ended up instead in something like feudal Japan before the Meiji Restoration. The land, he sees, is ruled over by fifty shoguns who exercise absolute power over the smallest details of their subjects’ lives. Those who, in violation of the shoguns’ arbitrary commands, dare to have their hair cut, walk on dry sand rather than wet, take exercise in public parks, or visit religious shrines are ritually abused by the shogun’s courtiers and pursued by the police. Some are even fined or thrown in jail. Meanwhile the nominal ruler of the country, like the emperors of old Kyoto, issues toothless advisories from his deserted capital. He holds court every day before television cameras where he attacks his courtiers with impotent rage and is treated by them with equal contempt. Back in his former country, Sam from Stanistan had seen old Hollywood movies that boasted incessantly of America’s freedom and democracy, the rule of the people. Now he wonders, where is all that democracy? Was it all just hype and salesmanship? Do the people of America have no voice at all in their government?
Even without a pandemic, democracy isn’t so easy to find in America. I once had the honor of teaching a graduate seminar on republicanism with my Harvard colleague, the great political philosopher Harvey Mansfield. For one of our weekly seminars we read Tocqueville’s Democracy in America. Harvey led off the discussion by asking what, on their face, seemed absurd questions: whether America was a democratic country, and if so, where we could find democracy in America. Blank stares from the students. Then we went through American institutions one by one. The armed forces? No democracy there. The corporate world? No democracy there, although some students insisted that markets and shareholders acted as a kind of indirect popular check on CEOs. Schools, university governance? No democracy there either. Faculty are occasionally permitted to sound off before being ignored by administrators, parents can sign angry petitions, but that’s about it. The Boy Scouts? No democracy. The AARP, the country’s largest lobbying organization, other NGOs? Their leaders are usually chosen by cooptation or by trustees selected by wealthy donors. Ordinary Americans, we were forced to conclude, have little or no voice in many of the largest institutions we encounter in our daily lives. The point was to illustrate how, even in democratic societies, institutions have a strong tendency to organize themselves into hierarchies.
The Unnaturalness of Democracy
Democracy, then, a regime that aims at political equality, is in a sense unnatural. Our democratic norms in America are learned patterns of behavior that cut against the grain of the human survival instinct. As Alexander Hamilton wrote in the Federalist Papers, they are the product of “reflection and choice.” Some would say that they are luxury goods that only wealthier and more educated societies can afford. As the product of willed artifice and ingenuity they are extremely valuable, and extremely fragile. That is precisely why the experience of the recent pandemic has been so unsettling for us (small-d) democrats. The pandemic has curtailed our liberties in the most dramatic fashion, and we the people have had little to say about it. Democracy has almost completely disappeared at just the moment when the state has assumed unprecedented dictatorial power over us.
The obvious response, of course, is that the current dictatorship of governors is justified because of a public emergency, the mortal threat of coronavirus. Freedoms are always curtailed in a crisis situation when the republic’s very life is in danger. Lincoln suspended habeas corpus during the Civil War. Roosevelt drove 120,000 Japanese by executive order into concentration camps—over 60% of them citizens of the U.S.—after Pearl Harbor. In an emergency, there is no time for democratic deliberation, it is claimed, with its long delays, compromises, and conflicting outcomes. The executive branch must be granted wide powers for short periods of time until the crisis is resolved. People need the firm smack of government in times of panic. Afterwards, we can return to our regular democratic norms of governance. In any case, most state legislatures have passed acts which permit emergency powers to be exercised with full democratic legitimacy. We are not talking here about illegal seizures of power.
All this is true, but that does not mean that states of emergency, especially ones whose terms and powers are open-ended, unspecified by law, are not a danger to democracy. And when rule by decree continues in effect long after the immediate threats that justified it are past, the dangers increase. The drawbacks of authoritarian rule begin leaping to the eye. We start to comprehend in a more vivid, personal way why our forebears were willing to fight for freedom and self-government.
A Gateway to Tyranny
History teaches that the abuse of emergency powers is often a gateway to tyranny. The Romans had a constitutional magistrate known as a dictator who could be granted carefully delimited emergency powers for a period of six months. They had at least 84 such magistrates between the founding of the Republic in 510 BC and the second century BC, and the institution generally functioned well within its remit. But when the Republic began to appoint dictators of unspecified powers and unlimited terms, first with Sulla in 82 BC, then with Julius Caesar in 44 BC, the slide into autocracy became irreversible.
We can find many such cases in Western history. Most of the dozens of popular city-republics in medieval Italy became lordships after emergency powers were granted to powerful signori. The Medici in the Renaissance became the unofficial lords of Florence thanks to lengthy periods of emergency power, called balìe, granted to their regime by city’s republican government. Oliver Cromwell’s military dictatorship in seventeenth-century Britain was enabled by serial overrides of regular parliamentary order. Napoleon’s rise to power in the Coup of 18 Brumaire, 1799, was engineered after a long period of military emergency declared by the Directory of the First French Republic.
We Americans pay little attention to history these days and most will, perhaps, scoff at such parallels. But we should, I believe, view with concern the easy acquiescence with which most Americans have given up our most basic freedoms in the current crisis. We should ask ourselves what the effects of repeated public health crises of the same kind might be. Are we going to have similar impositions of emergency government, rule by decree, every time we are threatened with a new virus? A Stanford study just published argues that COVID-19 is not as deadly as the flu. Are we going to go into lockdown every time we have a bad flu season? What will that do to our traditions of self-government and democratic norms?
Already we see governors of a more partisan bent using their emergency powers to impose, without debate, measures that advantage their parties. One egregious example is Governor Newsom’s vote-by-mail mandates, imposed by executive order. The precedents that have been established as to what counts as “essential” versus “non-essential” businesses are also being weaponized politically, to weaken disfavored groups. Many governors are revealing a disdain for the welfare of the self-supporting middle classes, the property owners and small businessmen who historically have been the key to maintaining all forms of republican government.
Many governors and mayors seem to be so blinded by partisanship that they are unable to understand why restoring full constitutional rights, the free exercise of religion for example, is a matter of some urgency for many citizens. Political parties in the U.S. are differentiated by religious affiliation, and denominations differ in their sense of what religion requires. Families belonging to more traditional religions would much rather risk infection than allow a beloved parent to die alone in a hospital, with the comforts of religion delivered by iPhone. More liberal denominations, it would appear, have fewer objections to online religion. Thus, different values are assigned to the free exercise of religion by governors belonging to different political parties.
Political parties also differ in the value they assign to religion as a source of social capital. Politicians who represent urban, secular parts of our country tend to discount it. Some seem unaware that nearly a fifth of hospitals in the U.S. are faith-based institutions (and the percentage is growing.) What was it, if not partisan animus, that made the mayor of New York City threaten to shut down churches “permanently” for violating his emergency orders? Yet history teaches that government threats to free religious practice are among the most powerful causes of hyperpartisanship. And hyperpartisanship, too, is a common antechamber to tyranny.
Quite apart from the dangers of partisanship, it is by no means clear that dispensing with democratic deliberation has made emergency government better at handling the current health crisis. Without the benefit of full legislative debate, governors are thrown back on the opinions of scientific and medical experts. Experts are not good at producing consensus. Despite the belief of many that “the science” speaks with one voice, this is manifestly not the case. Experts, individuals who often possess the most impressive credentials and experience, do disagree. They also change their minds and adjust their models, sometimes dramatically, from month to month. Since governments need people to accept and obey their policies, and since their policies in a health crisis claim to be based on scientific authority, governments will constantly be tempted to ignore any scientists who question their edicts. They will turn a blind eye to the efforts of Google and Facebook to collude in creating an informal Ministry of Truth, silencing scientific heresies. Since politicians like power, they will tend to support the science that justifies them in grabbing more of it. But the science the authorities want may not be the science we need. Only free debate and fair competition within the scientific community can tell us what that is.
Furthermore, politicians are always able to identify experts who will support their own partisan preferences. Democrats prefer one set of experts, Republicans another. Elites favor some models, populists others. This fact pushes the exercise of emergency powers all too quickly in the direction of tyranny. Policies in a health crisis will tend to reflect the ruling group’s tolerance for risk. High-status individuals who are financially secure, as we see illustrated every day, magnify health risks far more than people at the bottom of our society who struggle with many risks. Those whose livelihoods can crater at the slightest shock to the economy care much less about health risks than those with guaranteed incomes. When the wealthy and powerful choose and enforce policies that reflect their own tolerance of risk, those whose life is more precarious will experience those policies as the most naked tyranny.
The word “tyranny” will sound needlessly incendiary to some. Defenders of technocratic government always claim it is well justified when the experts who make policy are chosen by democratically elected leaders. It is just the paranoia of the ignorant that calls such governments tyrannical. But that is a superficial understanding of tyranny. According to the classic analysis of the medieval jurist, Bartolus of Sassoferrato, tyranny manifests itself in two basic ways. One is by the illegitimate seizure of power: violating law in order to engineer a coup d’état, for example. That is what technocrats think of as tyranny. The other kind is when a ruler possesses legitimate power but exercises it in a tyrannical way, immorally and unjustly. That kind of tyranny, tyranny ex parte exercitii as Bartolus called it, is no less harmful to the health of the republic. And historically speaking, it is far more common.
When our legitimate rulers exercise power in unjust ways, when they place partisan goals above the common good, when they dismiss as trivial the risks perceived by ordinary citizens, their rule cannot fail to be experienced as tyrannical by many on the receiving end. A healthy republic is one where citizens accept willingly the actions of their governments because they believe those actions have been taken in the interests of all, following upon public deliberations that have allowed a voice to all affected parties. This too is a fine old principle of Roman and medieval jurisprudence: quod omnes tangit debet ab omnibus approbari: what affects everyone ought to be approved by everyone. When that principle is ignored, those whose interests are being neglected will lose respect for the law and may reject duly constituted authority. A government’s decisions will be seen as arbitrary and possibly (in these partisan times) as malicious or corrupt. It is no wonder that we see all around us the beginnings of a revolt against our state governors’ ukases. Some of us might be tempted to raise a cheer at these signs that the spirit of democracy is not yet dead, but we all know, deep down, that we do not want democracy to succeed at the expense of the rule of law.
So, what is the solution for the democratic deficit that seems inseparable from emergency rule? An Aristotelian might say that the lockdowns imposed by many governors amount to a classic case of wealthy elites ruling in their own interest rather than in that of the whole citizen body. That is what differential assessments of risk by social class come to in practice. Aristotle called that oligarchy. The classic Aristotelian cure for the excesses of oligarchy is to compensate with more democracy. Stability and justice in any republic depend on balancing the interests of the rich and the poor and allowing all voices to be heard. Aristotle also held that democratic deliberation, where many individuals pool together their practical wisdom, is often superior to the judgement of experts. The wisdom of the multitude often exceeds the wisdom of individuals with expert knowledge.
Concentrating Our Minds
How then can we balance the legitimate need of governments to issue orders to the citizenry in real emergencies with the obligation to treat the needs of all citizens equally and to respect civil rights? How can emergency governments be prevented from causing long-term damage to democratic norms? I have two modest suggestions.
First, before an emergency begins, our legislatures need to engage in vigorous democratic deliberation and achieve some kind of consensus on the scope and duration of the executive’s emergency powers. In our hyperpartisan political culture that will be hard to achieve, but death, as Johnson said, tends to concentrate the mind. Once an emergency breaks out, unless the threat is truly imminent, governors should be required to seek emergency powers formally from the legislature. They should further be required to apply for authorization of any powers they may need that exceed the statutory scope and term of their authority. That requirement might act as some kind of check on governors who enjoy too much the power of the state coursing through their limbs and coming out of their mouths.
Second, we need emergency legislation to deal with the special problems presented by pandemics. Most legislation on the books today concerning states of emergency was written to deal with situations quite unlike that of the novel coronavirus: with economic threats such as general strikes in the 1910s and 20s, with espionage in World War II, with possible nuclear attacks during the Cold War, with civil disobedience in during the 1960s, and with natural disasters such as earthquakes or floods. A pandemic is a different type of threat and requires different safeguards to protect democratic norms.
The principal one would be to ensure that a wide range of scientific opinion is consulted under conditions of open debate. Instead of a governor marching out before the press with his hand-picked chorus line of experts, the legislature should hold public hearings at regular intervals during an emergency in which experts selected by all parties can testify. Ordinary citizens should also be invited to explain to legislators the challenges they are facing. Under present conditions those responsibilities, clearly, cannot be left to the press. The legislature might then make formal recommendations to the governors and health officials charged with emergency management. It might also be advisable to empower a supermajority of the legislature to override foolish or overly imperious actions by the executive. It might further be specified that extreme policies such as lockdowns would need to be justified in terms of concrete metrics such as hospitalizations and fatalities. That might forestall destructive edicts from being imposed in response to media-driven panic. Such measures might also prevent the kind of path-dependency and sunk-cost fallacies that lead governors and public health officials to defend policies, not because they are effective, but because they are theirs.
Others will have other and no doubt better suggestions than these. More democracy is not always the best solution to the problems of democracy, but in the case of a pandemic, I believe, it may be our best hope of reasoned action. It seems unlikely, at least, that the massive damage done to the lives of millions by unwise policies in this year would have occurred if we the people had had more say in them. The full damage done to our democratic norms may take a longer time to manifest itself, but it could end up being even more costly.
Let’s hope not. Let’s not do this again.