(*) On the Wire of the research… Outreach post on the IFITIS Research Programme (IUF senior 2016-2021) on « Full Movement beyond Control and the Law » (http://www.universitates.eu/jsberge/?p=21027)

COVID-19: a Matter of Flow and the Lost of Control

We can see the COVID-19 pandemic as the manifestation of what I call “full movement beyond control.”

This phenomenon is the focus of an international and multidisciplinary research project: IFITIS.

So what’s it all about?

Human activities have profoundly modified the world’s major movements. These used to depend heavily on nature: winds, ocean and river currents, displacement of matter and living organisms. Nowadays things are very different. Movements are increasingly tied to our actions: mass population displacements, large-scale transport, dematerialisation of information flows.

Unlike natural movements, which man never claimed to fully control, those produced by human activities feed on control. Because humans are behind these movements, it is widely believed that we need simply interrupt a given activity for the associated movements to come to a halt. Many systems have been built up around this notion of control, and we know that the triptych circulation-security-space has been theorised compellingly (M. Foucault, 1978).

But this notion of control is an illusion.

The world’s stakeholders (States, businesses, citizens) are increasingly overwhelmed by these human-driven movements. There are many examples of this. The movement of migrants, data and information, capital, greenhouse gases and waste…: all of these are provoked by humans and largely escape our control.

COVID-19 is a perfect and topical illustration of this complete loss of control.

The anthropic origin of the pandemic is scarcely in doubt, even though the precise circumstances of its initial transmission to humans are subject to debate. Human activities and the changes they bring about in ecosystems are behind the spread of the virus, which otherwise would undoubtedly have remained confined to its original environment.

The circulation of the virus is also closely linked to our activities. Human-to-human transmission is correlated to all of our movements, whatever the scale, making us the primary vector.

Its spread is now literally out of control. The pandemic is surging forward like a gigantic wave that no-one can really stop or divert. As it moves it may lose intensity, but it would be a mistake to think it is possible to stop it.

We could better understand all of these large-scale movements caused by man by resituating them in the context of escape. This would see a paradigm shift from the notion that “everything can be controlled if we give ourselves the means” to the reality that “human domination is necessarily exerted in a global environment that escapes our control.”

In short, we need to reconsider the point of departure for today’s analyses of movement. Rather than allowing them to be built on the illusion that total control by humans is possible, from the outset we must confront the reality of lost control to reshape our analysis, especially in law.

There are two possible avenues for this intellectual overhaul of the law.

The first is to develop a new epistemology of movements in law. We must challenge all of our legal assumptions about ordinary or extraordinary movements, as in the case of COVID-19. We must also reconsider the way we classify movements for effective legal analysis. As part of the IFITIS project, I have identified five assumptions (magical, political, social, ontological and fundamental) and three movement types (movement in itself, transformative movement and movement as a space of flows).

The ambition underpinning the second avenue is to rethink the law beyond the notion of control. Instead of asking “who controls what?”, we should ask “who bears the brunt of lost control?” And rather than trying to determine “what are our absolute rights?”, we should adopt another approach: “to what extent does our environment allow us to exercise our subjective and human rights?”

Let there be no doubt: a veritable revolution lies ahead. Faced with the difficulty of controlling many of the situations in movement that we provoke, we need to place our own powerlessness very high up on the ladder of legal constructs. We must abandon the illusion of control and regain the path of submission to a global environment which in essence is beyond us.

Jean-Sylvestre Bergé is Professor of Law at the University of Côte d’Azur (UCA) and a Fellow of the French University Institute (IUF)