state of exception

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.

State of Exception in the Philosophy of Law. An Attempt at a Definition

Mgr Weronika Adamska

École des hautes études en sciences sociales

English abstract: The aim of this paper is to propose a definition of the state of exception within the framework of the philosophy of law. The nature of the state of exception is both a legal and a political one. For this reason, it is a subject of inquiry in various disciplines. As a consequence of its hybrid character, state of exception is hard to define, which leads to definitional scepticism. As a criterial definition is impossible to reach, I believe that it should be replaced with a paradigmatic one. Such a definition should take into account the acquis of, among others, philosophy, history or political science, so that it may apply to different methodological approaches. In order to do so, I present the main definitional groups (state of exception as a normative fact, as a constitutional dictatorship, as a political fact, and as a legal void). Next, using the criteria that are common to all those definitions, I propose and analyse three constitutive elements of the state of emergency: a crisis, a suspension of ordinary laws, and a temporary character of this suspension. The definition I propose can help to assess whether a given state is a form of a state of exception. This is of a particular relevance as emergency laws are nowadays widely discussed in the context of terrorist threats.

Keywords: state of exception, emergency laws, constitutional dictatorship, political crisis, philosophy of law, political theory

Language: Polish

Published: Number 4(25)/2020, pp. 5-16.

DOI: https://doi.org/10.36280/AFPiFS.2020.4.5

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Application of the Transmission Easement Regulations as an Example of the ‘State of Exception’ Law

Dr hab. Arkadiusz Barut

University of Wroclaw

Abstract: The subject of the article is an analysis of civil courts’ case law in terms formulated by Giorgio Agamben and Judith Butler, that is, in terms of law as a ‘state of exception’, a purely arbitrary practice that appears to be a parody of law. The author indicates aspects of such ‘law’: the blurring of the boundaries between the law and purely factual activities (in Agamben’s terminology: ‘life’), which may take the form of violence that no longer cares for its legitimacy or which reduces the law to ‘pure form’, that is, the creation and application of rules completely in abstract from their ethical evaluation and social consequences. In Foucault’s terminology, both these processes can be represented as a rebirth of sovereignty in the field of governmentality, the parody of the law being justified by the needs of population management, but in reality it is the result of a power’s strive for self-preservation. There are, as Butler defines, petty sovereigns who allegedly only quasi-technically apply the law articulated in full in the statute, and in fact act fully arbitrarily. One of their methods is to simulate the creation or application of law by taking away a particular meaning from words, in particular from legal concepts. The result is a departure from the idea of separation of powers and the postulate of empowerment of the addressee of legal norms, sometimes preserving the fiction of the latter’s agency as a kind of Agamben’s ‘pure form of law’. The author states that an example of such a process is the case law of the Polish Supreme Court and general courts regarding the possibility of acquisitive prescription of transmission easement by transmission companies. He indicates that the position that won in this case law completely deviates from the contents of the statute and the well-established understanding of civil law concepts, with the result of depriving property owners of their legal rights.

Keywords: state of exception, Agamben, Butler, transmission easement

Language: Polish

Received: 31.10.2018
Accepted: 23.03.2019

Published: Number 1(19)/2019, pp. 5-14

DOI: https://doi.org/10.36280/AFPiFS.2019.1.5

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Carl Schmitt Revisited by the United States and the Terrorist

Mgr Karolina Mendecka

English abstract: In the article “Carl Schmitt Revisited by the United States and the Terrorist” it is shown that Carl Schmitt’s morals, standards and views can be noticed in the United States policy in the context of so-called “war on terror”. According to the article, Islamic terrorists are a mirror image of Schmittan revolutionary partisan. It is discussed how terrorists are, as a problem, treated by the USA, which in author’s opinion displays many Schmittan features. Schmitt is one of the few who claim that the sovereign state is above the legal order and can set boundaries. It is therefore shown that the USA seem to have rushed into Schmittan “state of exception”, where norms are suspended in order to achieve security, resembling the thinking of the G.W. Bush administration. It is illustrated how the USA seem to be following Schmitt’s ideology, especially by making exceptions to international rules, but also putting the terrorist outside of the scope of international regulations. Lastly, author tries to answer the question if it is justified to follow Schmitt and obey to the rule of law.

Keywords: Carl Schmitt, war on terror, state of exception

Language: English

Published: Number 1(10)/2015, pp. 69-78

DOI: https://doi.org/10.36280/AFPiFS.2015.1.69

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Number of downloads: 224