Covid & The Rule of Law

Yesterday’s farcical exercise in parliamentarianism – where only 30 of 650 MPs showed up to rubber-stamp the government’s emergency powers (“Coronavirus Act 2020”) in a fashion that makes even Chinese democracy look adversarial – cast further light on the central problem of the general global response to the pandemic, namely that we have come to misunderstand the key facets and purposes of our institutions.

We appear to have agreed upon a definition of democracy which establishes the primacy of elected representatives and their whims over the other institutions of state. No longer – or at least not in the case – is the executive branch subject to judicial scrutiny, nor do we have an effective second chamber functioning as it should. Parliament, far from holding the executive to account, exists solely to legitimise the rule-by-decree style of governance that has so rapidly evolved during this crisis.

Liberty is also misunderstood. It is not, as so many believe today, the ability to democratically elect the legislative branch of government. Rather, liberty exists when every man is equal under the rule of law, another important concept that no longer appears to exist in the United Kingdom or the Anglosphere more broadly.

When the executive branch can pass what essentially amounts to an enabling act, which then permits it to bypass parliament and remove the freedoms of the people – which are naturally derived, as opposed to rights that are granted – by decree, a free country does not exist. Even more so when a judicial branch has seemingly no interest or capacity to intervene.

We have sleepwalked into a police state. This is no exaggeration; the police forces of the United Kingdom, Australia, New Zealand and more can accost anybody they like without due cause, detain them despite having no reasonable cause to believe a crime has been or will be committed, and issue summary fines for crimes than haven’t been legislated for. This is the very definition of a police state.

I’m no legal scholar, and I won’t pretend to be overly familiar with his work, but it is my understanding that Carl Schmitt made an entirely accurate observation that so-called liberal democracies become tyrannical dictatorships in times of crises, thus delegitimising their very claims to be such. It is yet another strong charge against the democratic system, which struggles, seemingly, to protect even the most fundamental aspects of liberty.

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