Abstract
The global effort to fight the Covid-19 pandemic triggered the adoption of unusual legal measures that restrict individual freedoms and raise acute legal questions. Yet, the conventional legal tools available to analyze those questions—including legal notions such as proportionality, equality, or the requisite levels of evidence—implicitly presume stable equilibria, and fail to capture the nonlinear properties of the pandemic. Because the pandemic diffuses in a complex system, using complexity theory can help align the law with its dynamics and produce a more effective legal response. We demonstrate how insights from complexity concerning temporal and spatial diffusion patterns, or the structure of the social network, can provide counter-intuitive answers to a series of pandemic-related legal questions pertaining to limitations of movement, privacy, business and religious freedoms, or prioritizing access to vaccines. This analysis could further inform legal policies aspiring to handle additional phenomena that diffuse in accordance with the principles of complexity.
Highlights
Covid-19 is presenting unprecedented legal challenges to traditional legal policy
In the context of an epidemic, such fat-tailed power law distribution implies that the expected harm is immense. 10These factors are similar to the guidelines we propose in the preceding Section, for applying the inverse proportionality test
The Covid-19 pandemic represents a great challenge for law and policy makers
Summary
Covid-19 is presenting unprecedented legal challenges to traditional legal policy. The effort to curb the pandemic entails the adoption of unparalleled measures that seriously compromise fundamental legal rights, ranging from free movement, to privacy, to the right to conduct business, or to carry out religious practices. When planning interventions to curb a pandemic, regulators should assume that it will not spread in a homogenous way Rather, they can rely on decades of complex systems research and expect, from early stages, that the pandemic’s spatial diffusion will exhibit a fractal pattern (cf [54]). Understanding the significance of network prioritizing in responding to a pandemic, alongside the networked nature of privacy, can assist policy makers and judiciaries in devising such schemes, and in addressing ostensible tensions between privacy and (public and private) health in specific circumstances This analysis reveals that the law is not always sufficiently sensitive to interactions as a relevant factor in the design of legal policies.
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