By Michael F. Duggan
“Zero population growth could be enforced only by a global authority with draconian powers and unwavering determination. There has never been such a power and there never will be.” -John Gray, Straw Dogs
“Stop, or I’ll say ‘Stop’ again.” -Robin Williams’ impression of an unarmed British policeman.
If the past year is any indication, the future of crisis management does not bode well.
The first tenet of legal realism is that the law is the command of a sovereign, whether it is a king or the collective administrative estates of a modern republic. Where the command is not enforced, the law ceases to exist. Laws that are not backed up by force or social custom are nothing more than a kind of literature or a historical curiosity. In practical terms they become suggestions whose effectiveness depends on the whims of the least dependable among us, Holmes’s “Bad Man.” Unenforced laws thus rely upon the least reliable to achieve their purposes. Anybody who has driven on Route 50 between Washington, D.C. and Annapolis on a weekend will know what I am talking about.
In instances where a jurisdiction is unable or unwilling to enforce the law, the most aggressive and opportunistic go unpunished and dominate, thus putting those who obey the law in danger or at a disadvantage. Where no laws are enforced the most aggressive and opportunistic people take over and are more likely to enforce their own commands with greater vigor and violence. Where the law is enforced occasionally, selectively, or haphazardly—speed limits for example—the result will be compliance only when enforcement elements are known or believed to be present, therefore precluding a predictable and well-ordered civil society. Where the law goes enforced or does not exist—and in practical terms, the difference is trivial—the purpose of the law will go unmet. Such has been the case for rules governing behavior during the COVID-19 pandemic throughout much of the United States.
I have mentioned these statistics before and give them again because the numbers illustrate the issue more clearly than words alone: Taiwan, with enforceable rules in place, had 7 deaths without a vaccine. New Zealand lost 26. Vietnam, 35. What do these nations have in common? They are small and two are islands. Taiwan has a large population for a small country— about 23.57 million (two million more than Florida, which has seen 35,306 COVID-19 deaths). New Zealand has fewer than 5 million people. Taiwan knew from previous experience with MERS and SARS of the danger of a new and highly contagious virus. Taiwan and Vietnam are not especially diverse and one could possibly make a cultural argument that East Asian nations tend to be more communitarian than many Western nations. New Zealand is diverse, but the civic-mindedness, moderation, and rationality for which New Zealanders are famous seem to have been the only things spreading among its more recent arrivals. It is the rarest creature in the world: a diverse population with a shared normative policy outlook, at least on this issue.
The odds of large, populous, and diverse nations spread-out over numerous jurisdictions (Brazil, India) behaving as effectively as these small nations are long without strict enforcement measures. And so, with the authority to deal with the outbreak delegated beyond Washington for the first ten months of the crisis, the United States has now lost about 577,000 of its people to the disease. But we could have done better. With the response now taking on the characteristics of a national effort, things appear to be improving.
The United States never fully locked down. Instead of a coherent national policy based on best practices recommendations with sensitivity to local conditions and needs, authority was delegated to states, counties, and cities, and these ranged from the sensible to the insane, to the belated, to the sensible-but-relaxed-too-soon. Jurisdictions where enforceable lockdowns were in place sometimes gave into pressures from powerful local business interests and reopened short of victory. Perhaps I do not understand the mathematics of contagion, but it seems pretty simple: if you put infected people in close proximity to uninfected, unvaccinated people, you will get transmission. This has happened three times already and, even after more than 200 million vaccinations, the numbers had begun to plateau again. Hopefully the vaccinations will outpace the spread of the disease.
As far as world-historical crises go, the COVID-19 pandemic—although still raging—is not of the largest kind. What historical lessons can we take from the pandemic, the Great Abdication of 2020 and its consequences, and how might we apply them to potentially larger crises on the horizon such as those of the environment? I think that even at this early point we can distill a few of the more obvious ones:
- Unenforced decrees are ineffective solutions to rapidly-evolving crises; half-measures produce half-results or worse, and they can actually extend the duration of the crisis.
- As with crises of international epidemiology, the problems of the environment will require coherent national solutions within a coherent global approach. This will have to be based on cooperative nation states effectively enforcing guidelines founded on the best information. In order to work, such an effort would require a critical mass of regions and states including Australia, Canada, China, Europe, India, the Islamic Middle East, Japan and the nations of the Pacific Rim, Russia, South Africa, the Republics of Latin America, and the United States.
- The character of the crisis must be accessed and determined as quickly and accurately as possible. Likewise the most effective possible response must be devised as soon as possible. With the crises of the environment, we will have to get the solutions right on the first try.
- Nature does not bargain. It does care about democratic form or rights (there is no such thing as “natural” rights; rights are human constructs). Solutions must be formulated on the terms dictated by the crisis. Beyond an unknowable and unpredictable flexibility, the environment will not forgive us our mistakes, excesses, and missed goals.
- All solutions and their enforcement must therefore be based on real situational dictates of the biosphere, and they will have to be flexible enough to change as those realities and our understanding of them change. Carbon generation goals based on human schedules (for example) are meaningless if those timetables are not directly reflective of environmental realities.
- Approaches to the crises of the environment will have to include both social and technological elements.
- Finally, an effective approach to the climate will require strict laws and equally strict enforcement of them.
That last point is the kicker.
If the pandemic demonstrated anything, it is that necessary measures have to be enforced in order to mean anything. The various responses to COVID-19 have been a test case for how the world deals with a rapidly-developing global crisis. It was a dry run that exposed what worked and what did not work, and the initial results overall are not encouraging.
Americans were asked to make the most modest of sacrifices—to wear cotton masks, and to take a life-preserving vaccine free of charge. Many flouted these simple and realistic measures and some still resist. One is left wondering if some of our demoralized citizens have a conscious or unconscious death wish or if their mindset is somehow akin to those of suicide cults. To the degree that we are succeeding or will succeed in defeating the virus, it is because of medical technology and the more sensible national approach of recent months rather than the willingness of all Americans for shared sacrifice. If we address the crises of the environment in a similar way, we will fail.
If we are faced with a far more serious set of crises over the coming decades, and it becomes clear that strict measures are necessary, say, the limiting of every couple in the world no more than one child (in order to address the overarching population crisis), or serious jail time for improper disposal of plastic (to address the plastics crisis), equally strict enforcement will likely be necessary to make such measures work.
If an existential crisis were to appear and necessary measures turned out to be politically impossible, then it is the system and not the solutions that is unrealistic. This is chilling in its implications and hard to write because it suggests that remedies to an existential world crisis would require the absolute enforcement of laws. If nature decrees it, it will have to be so, unless we are content with putting rights and liberties above life itself and the life of the planet, in which case our rights and liberties will die with us. Jefferson’s great experiment will have failed along with an even more notable experiment of evolution.
If, on the other hand, such an approach worked—with uncompromising laws and their enforcement—powerful bodies of oversight would have to be put in place to prevent abuses. Much of a liberal democratic system could be preserved so long as people willingly made the necessary sacrifices to ward off global catastrophe. But the sacrifices would be significant and part and parcel with a complete reconfiguration of the human relationship with the planet. A big part of this would be to strictly limit what people and industry could take from the world, and what they could put back into it.
Even with an effort with the nearly universal appeal of continued survival, this may not be possible. Few national endeavors were as popular as the U.S. mobilization during World War II. And yet perhaps a full quarter of all U.S. retail transactions during the war were illegal black market purchases by people trying to beat the system and flout restrictions.1 If a robust body of laws were enacted with a goal of implementing something along the lines of the prescriptions of Edward O. Wilson in his book, Half-Earth, it is hard to imagine how it would be enforced without stern measures and a fair amount of persuasion.
There are historical precedents in this country for installing desperate measures in desperate times. During the Civil War, the Maryland legislature was planning to vote on the question of secession. If it had voted to side with the Confederacy, the capital of the Union would have been 100 miles behind enemy lines. The vote was therefore an existential threat to the nation, and to prevent it (and other threats such as the sabotage of strategic railroad lines), Lincoln suspended the writ of habeas corpus, the cornerstone of the English common law and U.S. case law. Lincoln’s justification was that by enforcing “all the laws but one” he could preserve all of the others.2 It was, Lincoln reasoned, a wartime measure necessary to secure the survival of the Union and thus preserve the United States. So it would be with the crises of the environment. As Robert Jackson warns, “without a little practical wisdom” the Bill of Rights could become a “suicide pact,”3 The implication is that survival is the first law and above all others.
Rights and security are binary elements of our system that exist in relation to each other like weights in the pans of a balance scale, a relationship that requires constant readjustment. As with equality and freedom, they are first principles at odds with each other. When security goes up via enforcement, rights will suffer. When people are given absolute freedom, security suffers. There can be no final configuration to address this tension, this constant state of imbalance. It changes as conditions changes, and thus governing is a never-ending sequence of fine-tuning based on changing social realities. Of course, other than extinction, the greatest danger in a free country is the relinquishing rights. Once lost there is a chance that they will not be regained.
Therefore, one of the most dangerous things a person can do is to flirt with draconian solutions. As a rule I eschew eschatology, tribalism, and utopianism, preferring workable non-ideological piecemeal solutions and that is what I am attempting to frame here. As Tony Judt writes in his final book, Ill Fares the Land, “If the twentieth-century taught us anything, it should have been that the more perfect solution, the more terrifying the consequences.” There are no perfect solutions. But there are workable ones. The task will be to devise plausible and enforceable solutions while preserving liberalism and democracy. To do this, we will likely be required to pursue a robust piecemeal approach with stern enforcement measures. We will have to strike a balance, but it will have to be on nature’s terms.
Of course if the angry extremism that is still widespread in parts of the country persists, a certain minority of Americans will not comply with necessary measures or perhaps even believe in the reality of the crises of the environment. Fortunately, recent polls suggest that a large majority of Americans now believe that humans are altering the environment. The now task will be to convince them of its existential seriousness as an impending reality. Even more important than enforcement will be the general compliance with the law.
Still, some will resist strong laws addressing the environment. With the rise of militias, it is possible that the enforcement of necessary policies will result in widespread, perhaps even generalized, violence. It is not clear whether laws can work at all if a large minority of people will not obey them, even with the most vigorous enforcement measures in place.
To appreciate the importance of general compliance in respect to a system of laws and its goals, we need only look at the example of Marxist-Leninism. Communism is based on egalitarianism and a presumption of altruism in the human heart. But what happens in a nation that adopts a communistic form of government when its leaders realize that the motivations behind an egalitarian outlook and altruism are not the predominant human motivation? In such a case, the system is not automatically self-reinforced by normative morality—the ideology is found to be at odds with other concerns of the people. You then get compliance forced by the state. You get the Soviet Union.
As regards the crises of the environment, I am not talking about perfection, but rather “good enough to work” for the sustainable, long-term survival of the planet and our species by strictly enforcing necessary laws while cutting back on a few notable ones. What is the point of laws if the planet dies along with everybody on it?
What is “good enough to work”? The New Deal was hardly a workers’ paradise, but it worked well as a program of large-scale piecemeal measures to address a serious economic crisis. Even with a quarter of Americans flouting the law, the U.S. industrial mobilization with accompanying social restrictions also worked. Both of these measures worked in spite of a fair measure non-compliance because the nation was still fairly homogenous.
This time we faced a world-historical crisis and the results, other than in vaccine development and now in their distribution, were not impressive. This time the solution—assuming it continues to work—was singular and technological. It is dangerous to assume that technology will always save us, and there will be crises where technology will not be up to the challenge or will only be part of the solution.
The law is not morality, but as an external system of rules it stands in proximity to a normative ethos. In order to work, a considerable majority of people must believe in the law or else grudgingly obey it out of respect for its legitimacy. It must then be enforced for those not inclined to obey. As regards the laws necessary to address the crises likely to face us in the coming decades, if anyone knows of a way to do this without force and the sternest of measures, I’m all ears.
Notes
- Geoffrey C. Ward and Ken Burns, The War, 223.
- See generally William H. Rehnquist, All the Laws but One.
- Terminicello v. Chicago, 337 U.S. 1, 37 [1949].