Application of the Precautionary Principle in Dealing with Future Pandemic Diseases: The Dilemma of Legality and Legitimacy Under the Rule of Law

Abstract

Over the past few decades, governments have increasingly employed extraordinary measures in their legal and political decision-making processes. These measures often align with the contemporary risk management approach grounded in the precautionary principle. This shift can be attributed to the uncertain nature of recent times, marked by various viral outbreaks, most notably the enduring COVID-19 pandemic. Furthermore, in the context of governmentality, which represents a modern and post-emergency response to pandemics, governments have favoured the enactment of ‘exceptional laws’ (Ausnahmegesetze) over the declaration of a ‘state of exception’ (Ausnahmezustand). This choice is made to uphold their commitment to democratic values and the rule of law. This article claims that the current approach to legislating precautionary-principle-based laws through exceptional laws represents backsliding in terms of upholding the rule of law. Consequently, it emphasises the need to prevent any erosion of the rule of law and its potential consequences for human rights. To address this concern, the article advocates moving beyond a mere focus on legality and instead scrutinising these laws through the lens of legitimacy.