This Article offers a new conceptual framework to understand the connection between law and violence in emergencies. It is by now well-established that governments often commit state violence in times of national security crisis by implementing excessive emergency measures. The Article calls this type of legal violence “Emergency-Affirming Violence.” But Emergency Violence can also be committed through governmental non-action. This type of violence, which this Article calls, “Emergency-Denying Violence,” has manifested in the crisis of the COVID-19 pandemic.
The Article offers a taxonomy to better understand the phenomenon of Emergency Violence. Using 9/11 and COVID-19 as examples, the Article proposes that there are two types of Emergency Violence: Emergency-Affirming Violence and Emergency-Denying Violence. Emergency-Affirming Violence occurs when the government (1) declares and emphasizes the magnitude of an emergency; (2) calls for robust deference to experts; and (3) aggressively pursues emergency measures. Emergency-Denying Violence, by contrast, occurs when the government (1) denies or minimizes the existence of an emergency; (2) ignores or undermines experts; and (3) declines to take significant emergency measures. The Article demonstrates how the three branches of government can engage in both types of Emergency Violence.
Analyzing the legal responses to the two national crises of 9/11 and COVID- 19 side-by-side, the Article underscores the vulnerable individuals and communities against whom Emergency Violence is unleashed via both Emergency-Affirming and Emergency-Denying Violence.