How Does Law Communicate?, Vol. 27 - 2020, No. 4

Guest Edited by Philippe-Joseph Salazar and Klaus Kotzé

Virginia Governor’s “Executive Order 51”: How Control, Consent and Care Collide in Emergency Laws

Reingard Nethersole, pages: 337-349

A close reading of two interrelated Executive Orders issued by the Governor of the U.S. State of Virginia exposes modern Law’s twofold paradoxes. While the first stems from perennial judicial-political disjunctive opposition between responsibility for self-preservation and collective wellbeing, the second paradox comes into view with the rise, in eighteenth-century North America, of homo oeconomicus who, newly endowed with rights has the (additional) right not to obey government orders. The entanglement of the two, enfolded in decisive contradiction accompanying the formation of Virginia together with the U.S., defines the fault line in all emergency regulation designed to protect populations in a pandemic that threaten lives and livelihoods. Framed by theoretical borrowings from late Foucault (on governmentality) that encompasses various strategic techniques for making society function equitable, and from Balibar’s discussions on “the individualist tradition,” I argue with Menke’s Critique of Rights that the Virginia Emergency Orders expose the historical precariousness of the (neo)liberal subject of interest, reiterating what Schmitt saw as Hobbes’ central political concern, namely that without “the mutual relation between Protection and Obedience” anarchy would threaten the order forged by contract.

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