Legal Theory

Atiles, Jose and David Whyte, ‘Reproducing Crises: Understanding the Role of Law in the COVID-19 Global Pandemic’ (2023) 45(3) Law & Policy 238–252
Abstract: Governmental responses to the COVID-19 global pandemic have generated numerous constitutional, policy, legal, and political-economic debates. Scholarly engagements with the sociolegal and policy consequences of the COVID-19 pandemic have been dominated by discussion on the role of emergency powers, the suspension of individual civil liberties, the suspension of economic rules in order to guarantee economic survival, and social regulation of public spaces and of workplaces. This paper aims to explore how a critical sociolegal scholarship can contribute to a more sophisticated understanding of the role of law in creating the unequal conditions that propitiated the COVID-19 pandemic and that might enable further crises. This introduction offers a roadmap for theorizing the limits of law, the operationalization of emergency powers and the different policies implemented by global south and north countries in response to the pandemic. This introduction is structured as follow: (1) provides a general overview of the law and society tradition and its engagement with the COVID-19 pandemic; (2) engages with three key consequences of the pandemic, labor, and the lockdown; colonial implications; and the limits of law; (3) introduces the papers in this special issue; (4) sketches a proposal for the critical sociolegal scholarship of law and crises.

Desai, Deval, ‘Law and the Political Stakes of Global Crises: Lessons from Development Practice for a Coronavirus World’ (2023) 45(3) Law & Policy 273–291
Abstract: Law has translated the coronavirus crisis into politically salient forms in people’s lives, from states of emergency, to border closures, to mask mandates. Yet political theory work on these forms has focused on constraining arbitrary state power. In this paper, I try to broaden this focus. Substantively, I argue that policy and its implementation also matter to how we theorize the role of law in crises, in terms of how we understand the political power of society and its relationship to the state. Methodologically, I argue that thinking about law in this way is more than a complement to or replacement for thinking about constraints on arbitrariness. Rather, different forms of thinking about law and crisis should constantly be used to critique each other in order to pursue the sorts of legal innovations required by geomobile and interconnected crises. Given that the current pandemic and its broader consequences are still unfolding, I turn to development policy and practice to demonstrate the process and consequence of such ongoing critique in action. Studying rule of law reforms—including during the West African Ebola crisis—I show how practitioners continually reimagined law in ways that facilitated ongoing legal innovation that could adapt to the politics of the crisis.

Featherstone, Mark, ‘Viral Law: Life, Death, Difference, and Indifference from the Spanish Flu to Covid-19’ (2022) 35(3) International Journal for the Semiotics of Law - Revue internationale de Sémiotique juridique 1019–1037
Abstract: What is viral law? In order to being my discussion, I note that the last two years have been extremely difficult to understand and that we, meaning those who have lived through the pandemic, have struggled to make sense. Thus, I make the argument that the virus has impacted upon not only the individual’s ability to make sense in a world where every day routines have been upended, but also social and political structures that similarly rely on repetition to continue to function. According to this thesis, Covid-19 is more than simply a biological organism, but also a cultural virus that undermines the organisation of social, political, and economic systems and requires new ways of thinking about how we might move forward into a post-Covid world. In the name of beginning this project of making sense of Covid-19, I track back in history to the comparable reference point of the Spanish flu pandemic of 1918–1920 and, in particular, a reading of Freud’s Beyond the Pleasure Principle, which the founder of psychoanalysis wrote in the shadow of the virus. In reading Freud’s attempt to write a psychology of death in the context of this funereal period of history, I argue that he set out first, a mythological theory of viral law concerned with the death drive, before turning to second, a techno-scientific, biological theory of the same (viral) law characterised by microbial immortality. Beyond this exploration of Beyond the Pleasure Principle, in the third part of the article I turn to a reading of Lacan’s interpretation of Freud’s work, where viral law becomes a story of cybernetics and nihilistic mechanisation. Here, perfect mechanisation, and the endless oscillation between message and noise, looks a lot like living death. Finally, I take up Derrida’s critique of Jacob’s molecular biology and, by extension, Freud’s theory of microbial immorality, that he thinks privileges an idea of repetitive sameness and opens up a space for cultural politics concerned with immunity against otherness. Derrida’s key point here is that this biological fantasy ignores the reality of viral sex that enables evolution to happen. What this means is that the other, even in its microbial form, is ever present, and that we must recognise the importance of difference to the possibility of social, political, and economic change.

Goding, Vincent, ‘Exceptionality, Neoliberalism and Corporations in COVID Times: JobKeeper and the Legal Shaping of Economic Order in Crisis’ (PhD Thesis, University of the Sunshine Coast, 2024)
Abstract: This thesis argues that the shaping of economic order in crisis is contingent upon both exceptional and normative forms of legal power and the interaction of these forms. It argues that extraordinary economic interventions are made possible by the partial suspension of normative politico-economic order during crisis, which enlivens an exceptional but fundamentally normalising state power. It shows how these exceptional interventions and their outcomes are influenced by their interaction with other elements of normative order which continue to function despite the crisis. Specifically, it demonstrates how extraordinary economic measures intended to stabilise and shape economic order during crisis depend upon and are influenced by an intimate relation between the institutions of the state, law and the corporation. This thesis makes these conclusions via a critical analysis of the Australian Commonwealth Government’s JobKeeper wage subsidy scheme, examining it through a theoretical lens which brings together Carl Schmitt’s theory of the state of exception and critical accounts of neoliberalism.

Sindane, Ntando, ‘Prophecy and the Pandemic: The Vindication of Decolonial Legal Critical Scholarship’ (2022) Southern African Public Law (advance article, published 29 June 2022)
Abstract: The ongoing COVID-19 global pandemic offers the legal academy a special opportunity to reflect on various conceptual, ideational, and ideological questions that cleavage the academy and society. In this exposition, I embrace an exegetical-cum-legalist enunciation to analyse the material conditions that define the lives of the historically and presently colonised peoples of South Africa. In the main, this treatise advances two arguments: (1) that the present socio-economic conditions illustrate the decisive thrust of decolonial legal critical scholarship and its ability to predict the future; and (2) that critical approaches to the law constitute a legitimate intellectual prophetic engagement. I conclude by insisting that decolonial legal critical scholarship should be the cornerstone and a focal point of emphasis in the calls to shift [and decolonise] all facets of the law and its curriculum.

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