In some recent blog posts, Italian star philosopher Giorgio Agamben frames the governmental response to the outbreak of the coronavirus in Italy and elsewhere as ‘frenetic, irrational and entirely unfounded’. According to Agamben, Covid-19 is not too different from the normal flus that affect us every year. The governmental reaction to the outbreak would be just another example of the tendency to use the state of exception as a normal paradigm for government. With terrorism exhausted as a legitimation for exceptional measures, the ‘invention of an epidemic’ would serve as an ideal pretext for scaling up such measures almost beyond limitation. Understandably, Agamben’s assessment of the current crisis has met with overwhelming criticism. Some commentators have even called to ‘defend society from Giorgio Agamben’, dismissing his statements as the dangerous ‘ramblings of a 77-year old man’ who should be de-platformed as soon as possible. Evidently, Agamben has been proven wrong in his appraisal of the spread of the virus as an invented epidemic, nothing to be actually worried about from a public health perspective. That does not mean, however, that his critique should not be taken very seriously.
In Dutch administrative law, a familiar view entails that the administrative court should not ‘occupy the chair of the executive’. By virtue of its powers, the government would have a ‘discretionary latitude of decision’ in which it is only under democratic control; insofar as it is not a matter of a ‘criminal charge’ there is only space for judicial review beyond the ‘edges’ of the administrative domain. In literature the ‘marginal test’ encounters increasing criticism. Many advocate that the Dutch administrative review of proportionality should align itself to EU law and German law, in which judicial control on proportional weighing of interests has a broader significance. The ever ongoing ‘withdrawal of the legislature’ would require a more sophisticated and nuanced approach whereby the judge can intensify his review in cases in which there is no punitive decision, but nonetheless a breach of important interests or fundamental rights. In addition to the literature, the courts are tending towards a broader review of proportionality. Apart from the question whether there was a ‘criminal charge’, the Administrative Law Division recently ended the so-called ‘alcolock programme’; upon application of that regulation it considered a proportionate weighing of interests ‘insufficiently guaranteed’ (ABRvS 4 maart 2015, AB 2015). Continue reading