Rule of law and state of exception: the genesis of the problem

Abstract

The purpose of this study was to clarify the correlation between the concepts of the rule of law and the state of exception in the context of the question of the nature of law and its correlation with force. The relevance of the study is explained by the need to reinterpret the idea of the rule of law and its boundaries in the context of modern challenges, in particular in the context of a pandemic. The study is of an interdisciplinary nature, which lies in combining legal, philosophical legal, and historical-philosophical perspectives using methods of philosophical legal reflection, comparison, analysis and synthesis, and historical-philosophical reconstruction. The correlation between the rule of law and the state of exception was clarified in three steps. First, the fundamental idea of the rule of law was explicated, which unites its numerous interpretations: law was considered as the antithesis of the arbitrariness of the powerful. Accordingly, the rule of law turned out to be a requirement immanent to any legal system. At the same time, the internal limitation of the rule of law associated with the statutory nature of the latter was emphasised, which inevitably necessitates striking a balance between the rule of law and justice, and the radicalisation of which brings to life the idea of a state of exception. The second part of this study contains a critical analysis of the theory of the state of exception, which, in contrast to the idea of the rule of law, identifies law and force, and ultimately denies law as such, normalising lawlessness. Finally, in the third step, three approaches to the correlation between the rule of law and the state of exception were analysed: 1) the priority of the state of exception, 2) a weak version of the priority of the rule of law, and 3) a strong version of the priority of the rule of law. It was concluded that the fundamental opposition between the rule of law and the state of exception renders their consistent combination impossible, and the corresponding attempts always turn out to be a compromise not favouring the former. However, according to the authors of this study, it is necessary to recognise the limitations of the law itself, without abandoning the discourse of the rule of law and the fundamental grounds for it