The Pandemic and Illiberal Constitutional Theories
Gábor Halmai · 2021
2020 ) CHRON.HIGHER.ED , www.chronicle.com/article/Giorgio-Agamben-s/248306 .15 Th e Pandemic and Illiberal Constitutional Th eories G Á BOR HALMAI I. Emergency Measures by Illiberal Regimes I use ' illiberalism ' in this chapter as a critical reaction to liberalism.Th e main theoretical objects of this illiberal critique are the values of political liberalism: human rights, justice, equality and the rule of law, its commitment to multiculturalism and tolerance, ideas of Isaiah Berlin ' s ' negative liberty ' , Karl Popper ' s ' open society ' , John Rawls ' ' overlapping consensus ' , or Ronald Dworkin ' s equality as the ' sovereign virtue ' .From an institutional point of view, and this will be more visible in the legal reactions to COVID-19, illiberalism challenges liberal democracy, which is not merely a limit on the public power of the majority, but also presupposes rule of law, checks and balances, and guaranteed fundamental rights.No one reasonably disputes that emergency situations, like the coronavirus pandemic, require special legal and constitutional measures even in fully-fl edged liberal democratic systems. 1 Th ese measures have to take into account various aspects, among them health and economic considerations, which can lead to diff erent balancing outcomes between certain legitimate public interests, like public health, public order, security and fundamental rights, such as right to human dignity, right to life, freedom of movement, right to education, freedom of information and expression, privacy, etc.Even decisions of democratic legislators and governments potentially reviewed by independent judicial bodies can lead either to ' under-' or ' overreaction ' to the pandemic.2 F Fukuyama , ' Pandemic and Political Order ' ( 2020 ) Foreign Aff airs .www.foreignaff airs.com/articles/world/2020-06-09/pandemic-and-political-order .3 Of course one can think of many other important factors Fukuyama fails to mention, such as the cultural traditions of societies.For instance, in Asia, certain social behaviours already require distancing and the experience with diff erent viruses in the last decades has also led to further preventive concepts in Africa.Th e age composition of the population also seems to be a crucial factor, as does the possibility to seal off the country (eg, New Zealand). 4 In 52% of the countries (68% of democratic and 30% of autocratic ones) the legislatures, in 41% of them the judiciary (in 55% of the democracies, compared with 27% of autocracies) and in 34% (in 40% of democracies as compared with 28% of autocracies) subnational bodies have become involved in the decisions of the executive.See T Ginsburg and M Versteeg ,