In a famous 1975 lecture before the Collège de France, the philosopher and social theorist Michel Foucault proposed that the plague of the mid-1300s inspired two contradictory responses: one "literary" in which "law is forgotten," one "political" in which the power of the state "is exercised to the full." I want to set aside for today the anarchic response to pandemics and draw our attention to the political response, which to intellectual historian Martin Wagner "imagines the measures taken against the spreading of the disease as a complete imposition of political power over the population and, concretely, over the individuals into which this population can be divided."

We'll consider Foucault's concern in greater detail, but at the outset it's important to note that his bifurcated perspective does not exhaust the whole of law's relationship to pandemics. Nonetheless, it's a solid stepping-off point.

Daniel Defoe's A Journal of the Plague Year, is a fact-heavy, yet fictionalized, 1722 account of the 1665 London plague. One of the central subjects of the novel is the practice of "shutting up" infected citizens in their homes. Although Defoe is something of an apologist for the practice, he questions both its efficacy and its excesses: "This shutting up of houses was at first counted a very cruel and unchristian method, and the poor people so confined made bitter lamentations. Complaints of the severity of it were also daily brought to my Lord Mayor, of houses causelessly (and some maliciously) shut up."

Not only is the quarantine over-practiced, but it is accompanied by a more insidious intrusion and affront to privacy, as Defoe wrote: "It is true that the locking up the doors of people's houses, and setting a watchman there night and day to prevent their stirring out or any coming to them, when perhaps the sound people in the family might have escaped if they had been removed from the sick, looked very hard and cruel . . ." In this respect, the London government's plague response substantiates Foucault's concern that—after the late middle ages—the modern bureaucratic state has frequently seized opportunities to both control and surveille the populace.

As further evidence, consider that—although the plague more-or-less disappeared from England in the late 17th Century—the major Parliamentary quarantine acts came in the 18th Century (1710 and 1721). Teacher, writer and scholar Travis Lau, following John Bender's seminal Imagining the Penitentiary, "reads the city's reactionary attempts at disease management (i.e., citizens designated as searchers and guards for and against other citizens 'shut up' in their houses) as exemplary of a panoptic [i.e., always observed] society produced through increasingly penetrating forms of surveillance and quarantine."

Even at the time, as literary and medical sage Margaret Healy registers, an increasing chorus (under the sway of faulty science, as it turns out) carped that "lines, guards, and compulsory isolation," are intolerable under "a free government in England." One hears echoes of this sentiment in Tesla CEO Elon Musk's widely reported rant in a recent earnings call: "If somebody wants to stay in their house, that's great. They can stay in their house and they should not be compelled to leave. But to say that they cannot leave their house and they will be arrested if they do, this is fascist. This is not democratic, this is not freedom."

At least as interesting as legal responses within an ongoing pandemic are its longer-term consequences. In the 14th century, marriage and inheritance were very important to the emerging, landed middle class. According to the great medieval historian Norman Cantor, the "relationship between generations and property was the central and certainly most interesting theme in the life of fourteenth-century gentry families. Over this process of marriage, birth, death, and inheritance, the Black Death fell like a tornado sweeping across the countryside."

Into this fray stepped the lawyers, who were required to know the law, draft arcane documents and argue in court. Cantor said, "They perforce got so expert in doing these things that they created a body of real estate law that is largely still in effect today. A barrister of 1350 deep frozen and thawed out today would need only a six-month refresher course at a first-rate American law school to practice property or real estate law today."

So where will the COVID-19 pandemic lead us, legally speaking? It's of course hard to say, but we know that the purpose of a new law is to correct what legal philosophers call a "mischief" in existing law. One thing that no one can dispute is that—coming into the pandemic—there were massive holes in the legal fabric that will need to be rewoven. Columbia Law School has recently published a free compendium of hole-filling possibilities that seems as good as any, entitled Law in the Time of COVID-19, and includes:

• Elections
• Prisoners' Rights
• Justice and the Criminal Legal System
• Immigration
• The New "Essential": Rethinking Social Goods
• Public Health Law Tools
• Child Welfare
• Emergency Exemptions from Environmental Laws
• Privacy and Pandemics
• LGBT Rights
• How to Help Small Businesses Survive
• Bankruptcy's Role
• Force Majeure in Corporate Transactions
• Dispute Resolution in Pandemic Circumstances
• Contactless Payments

And it's always possible that—because incident sometimes gives rise to instability—massive changes to the legal superstructure may be afoot. For example, Wat Tyler's Rebellion (1381) brought to the fore worker grievances that had festered since the Statute of Labourers (1351), which attempted to fix maximum wages during the labor shortage that followed the Black Death (1349).

In any event, some legal changes will no doubt come slowly, if only because—like the virus itself, which doesn't recognize borders—single-state solutions will do little to ameliorate the impact of this pandemic or prevent the next one. In the meantime, all we can do is take solace in Defoe's narrator's final words:

"A dreadful plague in London was In the year sixty-five, Which swept an hundred thousand souls Away; yet I alive"

Randy D. Gordon is a partner at Barnes & Thornburg LLP and co-chairs the antitrust practice group. He is executive professor of law and history at Texas A&M University.

This article should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.