CYIL vol. 12 (2021)
Tomáš Holčapek CYIL 12 (2021) society is quashed as illegal, who will pay the compensation to whom? The state to all its inhabitants? But the state is an artificial construct which can only obtain resources for such compensation from its people. Does such redistribution of wealth within the country serve any real purpose in protection of rule of law and individual rights? Another, closely connected question is whether law is an instrument suitable for times of a true crisis, or solely for usual, non-exceptional circumstances. Surely, as a concept, as a system of government of a human society (through legal rules and consequently not through momentary whims of an individual or a small oligarchy), law finds its field of application even during difficult periods. After all, the executive branch enacts the crisis measures in the form of law (in a broad sense) and courts are capable of reviewing them and consider their compliance with the constitution and fundamental rights and freedoms. But at the same time it can be argued that the presented judicial decisions have shown the practical limits of the law. Quick pace of the epidemic, discoveries of new mutations and new countermeasures, development of vaccines, debates on their efficiency, great impact of various restrictions on national economies and social and cultural life – all these factors have made it very difficult to rapidly adapt and modify the existing rules without damaging their substance and legitimacy. So while we should not surrender to complete pessimism about the role of the law, it seems at least arguable that we cannot fully rely on it in tumultuous times. The task which follows from this is that we should constantly keep thinking what other mechanisms and concepts can help us to support and complement the law so that we do not lose the most precious values which the law, and the judiciary as the law’s prime guardian, should protect.
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