Column by Sarah Marusek: Law’s authority on the body during a pandemic

As those who govern, law must find ways to “flatten the curve” that don’t perpetuate the already heightened division of the haves and the have nots amidst fear of legal repercussion.

This column is part of a series on the COVID-19 health crisis written by expert faculty and staff at UH Hilo.

By Sarah Marusek
Professor of Political Science
University of Hawaii at Hilo

Sarah Marusek
Sarah Marusek

During this time of the global COVID-19 pandemic, law’s authority is focused on the body. We each have a body; sadly for many thousands, the body has perished from coronavirus infection. For the purposes of the pandemic and the millions of bodies that remain, law exerts itself as an authority to govern bodies.

With a nod to the Foucauldian notion of biopolitics (biopolitics and biopower are theoretical frameworks of power that govern the body, as developed in multiple works from French philosopher, Michel Foucault), law’s discipline over the body transpires through datacounts of where sickened bodies reside, orders that direct the body to stop moving and/or traveling, proclamations that declare certain bodies unwelcome, law enforcement that punishes errant bodies, and legal pronouncements that condemn unresponsive bodies.

Through the legal response to viral spread around the world and in local communities, we imagine the body to be a segmentable entity comprised of numerous parts and functions. Bodies are hands that touch but require twenty seconds minimum of proper handwashing to disinfect them. Bodies release breath and airborne fluid that needs containment by a mask, even if only cotton and even if President Trump disagrees. Bodies eliminate and hoard, compelling the New York Times to ask “Is it time for Americans to embrace the bidet?”. Bodies take up space whether as the six feet of social distancing required between bodies or as that isolated space devoid of other bodies within the confines of shelters in place; yet, not all bodies have the same access to shelter the body as other bodies do.

Bodies are sources of infection, as we are told, even if healthy, to presume we have the virus as 25 percent of those infected may be symptom-free and thus unknowing carriers of the virus. Bodies are mapped by proximity to known contagion as well as by age through Kupuna Hours at grocery stores or through the closing of school buildings for the young. Bodies fuel the economy as some bodies spend where bodies continue to work either in person or in online environments where the body exists but may only be heard or silently seen (when virtual communication sites crash or don’t work) through a screen. The body is distinct from the computer; not all bodies have access to computers to embody them.

In public places, some bodies are welcome while other bodies as bodies deemed aimless are turned away by local governments and if in Hawai‘i, by the National Guard.  Other bodies lose employment or opportunities for employment globally and nationally as public places for bodies and the movement of bodies are locked down. Bodies at home are subject to the terror of other bodies at home. Bodies that die are buried alone with funerals conducted virtually.

For many bodies, such as those who work at services deemed essential that cannot telework, staying at home is not possible. For others, the compulsion to stay at home is simply too much. Yet Kaua‘i Mayor Derek Kawakami calls those “selfish individuals violating the quarantine,” who are out in public for “non-essential business or for breaking the island’s curfew” and/or stay-at-home orders, “covidiots”. To be a “covidiot” is a title given to those who ignore law’s authority in this unprecedented time of legal reaction to the medically unknown and socially feared. Such a title stems from law’s ambiguous and somewhat arbitrary determination of essential versus non-essential services. Yet, for many, the non-essential is essential as many of those working at jobs deemed by law to be non-essential have lost 100 percent of their incomes as they await governmental assistance.

Trump, and other government figures, declare that we are at war. While we do seem to be at war with the infectious rampage of COVID-19, law also seems to be fighting against disruptive and disobedient bodies attributed with its viral spread. As the deaths continue, the upcoming weeks and months challenge law to step back from the precipice and replace fear with fact in revising and updating legal directives regarding viral spread. As 80 percent of those who test positive for COVID-19 recover without hospitalization, law’s challenge is to repair the narrative in which bodies in public can reemerge and contribute to society’s recovery rather than discursively remain as sources of contagion. Managing the contagion also compels law to continue to work closely with scientific research for ways to prevent future spread.

As bodies exist holistically rather than in segmented fashion and cannot remain static or isolated from other bodies for very long, managing the contagion also compels law to realize ways to keep bodies economically, physically, and mentally healthy to begin the healing of a wounded society. As those who govern, law must find ways to “flatten the curve” that don’t perpetuate the already heightened division of the haves and the have nots amidst fear of legal repercussion.

This post was updated on 4/7/20 to clarify the data in the sentence on asymptomatic virus carriers.


Sarah Marusek specializes in public law with focus on legal geography, legal semiotics, and constitutive legal theory, and the interdisciplinary field of law and society. She arrived at UH Hilo in 2009.