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Departure from the rule of law as the consolidation of biopower. Example of Polish legislation justified by fighting the Covid-19 pandemic.

Dr hab. Arkadiusz Barut

University of Wrocław

English abstract: Throughout this article the author interprets the crisis of the rule law in Poland in 2020 caused by the phenomenon described as Covid-19 pandemic as the solidification and consolidation of biopower – the contribution of ideas and practices justified by the findings of natural sciences to the disestablishment of paradigms hitherto recognized as fundamental to the creation and application of law, that is the due process of law or its formal justice.

I proceed from the assumption that the creation and application of law must be grounded in phronesis — the Aristotelian prudence, that is the intellectual process of assessment of not only the means but also the goals. Thanks to the discernment of both the goals and the means in the same cognitive act, one gains the opportunity to distinguish individual cases and insight into specific situations. I assume the phronetics of law to justify and at once enable its acquisition of the property referred to as justice in its formal sense — predictability, non-retroactivity, generality of regulation, and so on. If, on the other hand, the law becomes subordinated to paradigms justified with the use of natural sciences, it ceases to fulfil its function. Biopower invades the legal sphere as a discourse of necessity, such a necessity is in itself the very opposite of the fine art of balancing the various competing interests, appreciating the importance of form and ritual, distinguishing the various individual cases.

The purpose of this article is to analyse the impact of the crisis referred to as the Covid-19 pandemic on law and in no way to pronounce on the medical aspects of its proliferation or express a moral or political judgement of the actions justified by the need to contain it.

Keywords: Covid – 19, pandemic, biopower, rule of law, Foucault, Legendre, Agamben

Language: English

Published: Number 3(28)/2021, pp.5-21

DOI: https://doi.org/10.36280/AFPiFS.2021.3.5

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Number of downloads: 351

This text is licensed under a Creative Commons Attribution – Non Commercial – No Derivative Works 4.0 International License.

Filed Under: Articles Tagged With: Agamben, biopower, Covid – 19, Foucault, Legendre, pandemic, rule of law

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Keywords

Tomasz Grzybowski personalistic introspection manuscrits philosophiques clandestins dealing with the past empiricism codification conception theory of state and law politics authority of judicial decisions grammatical problems judicial independence constitutional reasoning Jan Winczorek democratic transtion normative standard Divine ethics law illiberalism political information society ethical relativism personal traits Paulus Vladimiri rational basis test cultural evidence dignity political participation of women legal profession lawyer’s professional roles socialization friend direct application of the constitution teleological ethics opt-out model contract law roles of interpretation the bar legal form justifications of judgments mutual justifications Pierre Bourdieu emotions Saul Kripke ethical justification respect for law judicial reasoning journalist social steering administrative law

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