Populations, Pandemics, and Politics

Date01 September 2021
DOI10.1177/13582291211042212
Published date01 September 2021
AuthorMartha Albertson Fineman
Subject MatterEditorials
Editorial
International Journal of
Discrimination and the Law
2021, Vol. 21(3) 184190
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13582291211042212
journals.sagepub.com/home/jdi
Populations, Pandemics, and
Politics
Martha Albertson Fineman
I. Introduction
The pandemic has created a series of practical and policy challenges for the entities and
individuals deemed responsible for public health and welfare.
1
The way in which those
challenges have been approached reveals the assumptions that underlie the allocation of
social welfare responsibility in a society. Of particular interest are the norms or standards
and values governing the relationship between the individual and the state and its in-
stitutions. These norms historically reect the distinction between what is considered
appropriately of publicconcern and what is deemed primarily a privatematter. This
line between the public and the private serves to allocate responsibility, with private
matters often being assign as an individual or personal responsibility. Our understanding
of the private also enhances the concept of individual rights as constituting necessary
bulwarks against perceived inappropriate or invasive state action. At the same time, the
construction of the private constrains notions of collective welfare and responsibility.
Discussions about social justice and governmental responsibility are often framed in
abstract terms, referencing aspirational concepts such as equalityor autonomy.While
this is particularly evident in law, grand narratives also shape policies related to public
health and welfare, as well as many other areas that overlap with law. Of specic interest
in the context of this collection is the idealized rendition of the body that permeates these
grand narratives. In law, as well as in political theory, philosophy, economics, and ethics,
the body is abstracted to the point that its material realities and their implications for social
policy can be conveniently ignored. The paradigmatic human is routinely cast as an
independent, liberty-seeking, fully functioning adult. Laws and policy governing the
relationships among individuals have been designed around this autonomous being, who
is deemed a rational actor,capable of negotiation, bargaining, and giving informed
consent. The laws that dene the relationship between the individual and the state also
reect the dominance of this individually oriented perspective: any state action is pre-
sumed to carry with it the possibility of intrusion on individual liberty and must be
narrowly justied. The constitutional position of the state is ideally perceived as limited
and restrained, while the abstracted notion of the specic legal subject is taken out of
social relationships and thus freed from social responsibility. The individual so conceived
is not concerned with (in fact does not recognize) his own dependency or the need to even
concede the general wellbeing of society, let alone the needs of the next generation in

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