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Threshold of Justification of Emergency Regulations: On Coherentism Requirement for the Justification of Measures Adopted in the Czech Republic during the COVID-19 Pandemic

Doc. dr Pavel Ondřejek

Charles University in Prague

English abstract: The article deals with justification of generally binding legal acts as part of a state governed by the rule of law. The “state of exception” caused by the COVID-19 pandemic adds a new dimension to the issue of justification. The practice prevailing in the Czech Republic in 2020 did not reflect even the minimum requirements for justifying emergency measures, which brought on problems both in the practical application of the adopted measures and in their subsequent judicial review. The article attempts to find an appropriate level of justification, referred to as the threshold of justification and based on the coherentist theory of epistemic justification. The basis of such justification lies in the idea that individual grounds for justification can be found in the explanatory reports of the legislation, on the one hand, and in various pieces of relevant information available to the addressees, on the other hand. All these reasons should form a coherent whole and they should ultimately legitimize restrictions on the freedom of individuals. The final part of the article describes the importance of the threshold of justification for the review of proportionality and even reasonableness of the law.

Keywords: public justification, public reason, coherentism, theory of rational law-making, state of exception, proportionality, reasonableness of the law

Language: English

Published: Number 2(27)/2021, pp. 41-53.

DOI: https://doi.org/10.36280/AFPiFS.2021.2.41

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

Filed Under: Articles Tagged With: coherentism, proportionality, public justification, public reason, reasonableness of the law, state of exception, theory of rational law-making

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Keywords

public legitimacy realistic utopia dialogical utterance dignity memory policies Bartosz Greczner self-realization language of law pandemic existentialism affirmative amnesia Integrative Theory of Law Michel Foucault Nature of Things Andrei Marmor reducing pensions of communist officials Jerzy Wróblewski Leszek Kołakowski discourse Jan Winczorek ethics Stanisław Jędrczak personal dimension in legal education legal ethics power natural law principle of nondiscrimination theory of law elections impartiality Adam Dyrda courtroom discource Maciej Dybowski administrative courts social choice theory meaning externalism theory of democracy ethical justification social obligation principles of criminal law restorative justice law nonpositivist concept of law scientific study of law Adam Szot Hart-Dworkin debate positive rights Gustav Radbruch irrational Hart

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