Editor’s Note: In this, the first interview in BC Law Magazine’s “Vision Project” series, we begin a lengthy discussion with Boston College Law School’s faculty about where the Covid-19 pandemic and its attendant medical, economic, racial, and political consequences may lead us. As New York Times op-ed columnist Timothy Egan so eloquently put it recently, “Every crisis opens a course to the unknown. In an eye-blink, the impossible becomes possible. History in a sprint can mean a dark, lasting turn for the worse, or a new day of enlightened public policy.” There are warnings and worries in these professors’ views, but there are also farsighted ideas and strategies for crafting a better future, a more just society, and a world in which each and every human being is equal under the law.
PROFESSOR PAULO BARROZO
Professor Barrozo holds an SJD from Harvard Law School and a PhD in Political Science from Rio de Janeiro University Research Institute. Before joining BC Law, he was a lecturer in social thought at Harvard University, where he was the first recipient of the Stanley Hoffman Prize for Excellence in Teaching.
You’ve said the Trump Administration is one of several governments worldwide that have come into office promising to simplify people’s lives. What attracts voters to this style of governing, and what does the pandemic show us about its effectiveness? From time to time, significant minorities of the population throughout the globe experience the world as too complex, and people lose patience for dealing with complexity. A nostalgia for imagined simpler times sets in. That’s when the world becomes vulnerable to simplifiers. The last time that happened was with the rise of fascism in the 1920s, and it led to global tragedy. Simplifiers make old problems worse and create new ones because you can’t wish away complexity. In their response to the pandemic, simplifiers have been lethal. They have failed to adopt the best policies or adopted the best policies too late, at a cost of enormous suffering and loss of life.
Which governments have responded most successfully to the pandemic, and do they share an ideology or political party? If you look at the United States, you’ll see governors and mayors of both parties who have done well by their citizens, saving lives and diminishing suffering. The issue is not one of ideology or party but whether governments were paying attention and took preventive measures early, following the advice of experts.
Has the pandemic challenged the rule of law? Rulers who were never sincerely committed to the rule of law have taken advantage of the distraction created by the pandemic to undermine the rule of law. The Trump Administration has seized the occasion to persecute those it sees as enemies and protect those it sees as friends. In Brazil, the confusion and chaos around the response to the pandemic by President Jair Bolsonaro has further undermined some of the most important institutions and practices of the Brazilian state. Several other governments worldwide are doing the same thing. Their incompetence and flouting of scientific knowledge worsens the pandemic, and they are using the resulting distraction to further undermine the rule of law. It’s a feedback loop of incompetence, confusion, and lawlessness.
As we talk, street protests in Brazil and the United States have taken a turn away from peaceful manifestations. Is this also connected to the rise of simplifiers to high offices? To be clear, politics, in a bid to reach the common ground, the middle of the belief spectrum, the everywoman and everyman, has never been a stranger to simplification. What is new, is that at least two of the largest and most important democracies in today’s world are radicalizing simplicity.
This problem is compounded in the United States, Brazil, and elsewhere by a ruling technique opportunistic simplifiers sooner or later invariably deploy: the creation of internal and external “others” and enemies. Opportunistic simplifiers are ready to release their supporters from the duties of civility in order to stir and channel primal emotions against targeted minorities. Who, in this context, is surprised to see fascist iconography appearing in pro-Trump and pro-Bolsonaro rallies? Who is surprised to see the climate of discord they promote hatch out in protests against injustices that they then use to further promote otherization? This is also a feedback loop, only now of divisiveness, injustice, otherization, and lawlessness.
Are champions of the rule of law helping to counter the incompetence, confusion, otherization, and lawlessness? The US and Brazilian states, with their institutions, laws, and legal actors, can partially contain, override, and ameliorate the chaos and confusion that Trump and Bolsonaro are trying to sow. I’m talking about state and local governments. I’m talking about courts. About the national legislatures in both countries. About ministers of health, of the treasury, of foreign affairs, and of justice. I’m talking about task forces and central banks. When simplifiers come to power, they are made less deleterious than they would otherwise be because the law and legal actors have observed the complexities of life and have an institutional immune system that resists and fights oversimplification. When Presidents Trump and Bolsonaro came to power, people gave them a chance to prove their motivations were praiseworthy. I find it interesting that the first people who ceased to admire and respect the minds and words of these two presidents were the professional administrators around them.
You’ve argued that decisions of legal actors must be compatible with a society’s values in order to be seen as legitimate. How does this work in a society where values are hotly contested? I think in particular of a just-decided case in which a federal judge invoked the 2nd Amendment to overturn the Massachusetts governor’s order that gun shops are a nonessential business and as such would have to close during the pandemic. As a background comment, this judge’s decision ill-fits our best tradition of legal analysis. People have all kinds of rights—the rights to assemble, to worship, to speak, to come and go, to enter professions, etc.—but all these rights are limited by law. If you go out in the street and speak very loudly at 1 a.m. the police will take notice.
But to answer your question, when I talk about values, what I have in mind is a higher level of abstraction. I’m thinking of the notion of the supremacy of law, the notion of justice, the notion of equality, the notion of freedom, the notion of human dignity. When democratic societies solve problems, they look for solutions that they can defend as consistent with or required by a plausible interpretation of those abstract values.
Imagine a society faced with the problem of insufficient housing. There are many ways to solve that problem. One way, a way that’s been favored by some tyrants throughout history, is to kill or forcibly remove the excess population. Another way is to consider housing a right and make sure more housing is getting built. A government committed to human rights cannot choose to forcibly remove or kill off people.
You’ve published on the treatment of cruelty in criminal law regimes. What about the cruelty of governments to their citizens? Have you been seeing that in any government responses to the pandemic? The most developed conception of cruelty forces us to see as cruel the actions and inactions of governments that have failed to stop contagions at the lower levels of infection, have failed to provide medical care for those who need it, have failed to protect the most vulnerable: the elderly, the poor, the hungry. It also forces us to see as cruel the ways racism and other forms of otherization survive in our midst. Even if rulers claim it was not their intention, our conception of cruelty allows us to deem cruel a set of conditions that rulers have created by their actions and inactions. Constitutional law in the US and Brazil and most parts of the world has in its DNA a commitment against cruelty. That commitment is important in times like these, when you have rulers who see human life as disposable and minorities as pawns in their divide-to-rule strategies.
Do the responses of legal and political systems to the pandemic and their varying effectiveness suggest ways in which some legal and political systems need to change? What changes would strengthen societies facing future emergencies, health-related or otherwise?Legal systems will never cease to benefit from improvement. The American constitutional order and the legal system that flows from it deserve several large and many small improvements. We should not waste the current crisis, made graver by the pandemic and street protests, by failing to imagine and bring about those changes. One way to begin would be at the level of legal thought, where a proper concept of the state never fully developed, remaining stunted at the level of the mere notion of government. This progress in thought would result, among other things, in the creation of semi-independent institutions legally charged with the monitoring, preparation, prevention, and response coordination to the several areas of global risk that haunt the 21st century. This coming fall, in the context of a new course at Boston College Law School called Global Risks and Regulation, teams of select students will start the work of designing such institutions.
How do you think the US, Brazil, and other countries with simplifier governments will do in the near-to-medium term? Democracies like the US and Brazil are in an existential crisis. The question is whether the current rulers, who have no sincere commitment to democracy and the rule of law, will prevail and change the character of their republics or whether law will prevail and contain those rulers until they are out of office. Will we find our way to the top of the hill of democracy and justice, or will we jump into the abyss?
If the threat to democracy and the rule of law is vanquished, it will be in large measure thanks to the combination of character and legal expertise of key legal actors and the reflective power internal to the legal systems of the world. I am also hopeful that as the crisis deepens, civic virtue everywhere will continue to rise to the occasion. Maybe in the end, if the threat to democracy is vanquished, the world will emerge on the other side of the battle as an environment thoroughly inhospitable to the opportunistic simplifiers who sow disaster and incentivize obscurantism.
Read all faculty Vision Project interviews here.