Public interest or social need? Reflections on the Pandemic, Technology and the Law

In most countries the measures to deal with the pandemic were introduced through executive law-making mechanisms, which form part of the ‘law of necessity’ or ‘emergency law’. The legal formalist response to these measures accepts their proportionality and constitutionality because of their temporariness. So far, the debate among constitutionalists has focused on the contradiction between public interest (in this case concretised as public health) and fundamental rights. Additionally, the technocratic legitimacy of the measures is almost unanimously accepted. In this chapter I argue that the contradiction between health and economy, or, more accurately, between the social need for health and the partiality of economic interests, determines the scientificity of the different policy responses to the pandemic. In order to do so, the measures will be examined as a unity of (emergency) form and (politico-economic) content. The argument is that the scientific response to the pandemic is overdetermined by politico-economic priorities.