What is different about pandemic-related indicators, and what challenges and opportunities do these differences pose for the sociolegal researcher?
We can define as ‘legal’ an indicator that claims to capture legal phenomena, such as the costs of registering for pandemic-related economic assistance, the exercise by police of quarantine powers in different locations and as against people of different ethnicities; and/or that claims to capture phenomena that have clear legal implications, such as the infection rates, death rates and reproduction (R) values that inform decisions to enforce lockdowns.
Legal scholars are by now quite adept at celebrating legal indicators that draw productive attention to an important issue; and at shooting down those that are misleading, or that exert an excessive or perverting influence (Nelken and Siems 2017). Sociolegal methods prompt and facilitate us to expose how legal indicators construct and are constructed by social and sociomaterial relations (Perry-Kessaris 2017)—here between, for example, medics, patients, bus drivers, scientists, managers, politicians, commentators and laypeople; nasal swabs, shielding letters, respiratory droplets and furlough application forms. Two dimensions on which COVID challenges these almost well-worn analytical pathways are consciousness and scale. For all but a tiny minority, traditional legal indicators tend to operate out of sight and mind, somewhere up and over there. But COVID-19 makes us conscious of measuring and being measured; and of that measurement occurring on a scale that runs from infinitesimal to infinite.
Each of us is immersed in an unusual amount of micro-level numericisation: 37 degrees is good, over 70 years is bad, wash for 20 seconds, keep two meters apart, isolate for 14 days, exercise for one hour, one customer at a time, meet up to six people, die alone. We identify and process visual indicators of adherence by ourselves and others to formal guidance, and to the social norms that amplify them: how many people are wearing masks, clapping for carers, hoarding toilet paper, breaking quarantine. How does this rise in distributed measurement feed into wider sociolegal life—our relationships with and through law?
Furthermore, macro-level numericisation by public and private bodies is of immediate existential relevance to us all and, therefore, the subject of hyper public awareness and debate. Our gaze is unusually collective and focused—in this respect at least we are all in this together. But many COVID-era indicators exist on exponential or logarithmic scales that are difficult for most of us to comprehend. Governments know that they have our attention, whether or not it is always welcome. The UK Government, which is having an exceptionally bad pandemic, has engaged in what Professor Sir David Spiegelhalter has called ‘number theatre’, aided by unconscionably poor graphics; and precise but, in the absence of context, fundamentally meaningless array of measures of ‘success’—absolute number of ventilators and PPE distributed (or is it merely ordered?) with no indication of the scale of need. How might this experience of impossible engagement enrich our understanding of the social value of legal indicators more generally?
Thanks and credit to Mathias Siems and David Nelken for prompting me to think about this topic as part of their ongoing wider collaborative project exploring COVID-19 and the social role of indicators.