With the decline of twentieth-century totalitarianisms, for whose crimes the legal positivism was blamed, lawyers distanced themselves from instrumental visions of the law. Despite its unquestionable political origins, the law does not simply serve as a tool for exercising power. Once passed, it detaches from the legislator and is subjected to interpretation by autonomous legal communities. Despite this shift, which is to some extent linked to the decline of the modernism, lawyers are used to think of legislation as an activity subjected to technical rationality and means-end schema. The legislator passes laws to achieve specific ends. If so, then every legislative intervention can be judged as rational or failing to meet the requirements of rationality, i.e., as an adequate or inadequate means to achieve the legislator's goal.
This fundamental assumption, structuring legal thinking and legitimizing the authority of contemporary legislators, was challenged during the tumultuous period of the COVID-19 pandemic. The unprecedented situation (global pandemic in the era of globalization), the importance and scale of the threatened good (individual lives and health endangered by an easily transmissible virus), and the need for a quick response – all these factors resulted in the creations of laws failing to meet the standards of technical rationality. As a consequence, phenomena - unthinkable in principle in ordinary circumstances of a state governed by democratic rule of law - such as hastily enacting low-quality laws, frequent changes, ignoring the expertise, became a part of everyday life for citizens in many countries affected by the COVID-19 pandemic.

We believe that these experiences imply something important about the law and the politics of its creation and application. Legislative activity cannot be reduced to a simple means-end schema. Often, the goals of legislation are different from those declared. This is, contrary to what the context of the pandemic might suggest, a common and typical situation. To understand and bring this to light, we propose adopting a theoretical framework of law as a symbol. Symbolic studies of law and politics, developed by American (Thurman Arnold 1935, 1937, Joseph Gusfield 1963, Murray Edelman 1964, 1988, John P. Dwyer 1990), Scandinavian (Gunnel Gustafsson 1983, Jens Newig 2007), and Dutch scholars (Bart van Klink 2016) in the fields of law, political science, and sociology, emphasize that law, in its intent, is a certain illusion that serves more to communicate the aspirations of a given society than to achieve declared goals. Therefore, the situation in which the legislator creates laws that do not serve the achievement of declared goals is not unusual. The criminalization of abortion, prostitution, or drug use will almost certainly not eradicate these phenomena from society, but the very fact of their criminalization communicates something important about the aspirations of a given society.
Within this rich perspective, which allows a better understanding of legislative activity that often deviates from the assumption of technical rationality, fits proposed by us a concept of legislative placebo (Mateusz Stępień 2024) and the established concept of penal populism. By legislative placebo, we mean the conscious creation of flawed laws. Drawing from studies on placebo in medicine, we posit that, similar to how a doctor may employ therapy that aims to achieve a medical goal not through the pharmacological properties of the therapy but through its psychological impact on the patient, a legislator may, under certain circumstances, decide on a legislative intervention that aims to achieve its goal not directly based on the means-end schema but by generating a subjective belief that the goal has been achieved. An example of such legislative placebo could be various airport security procedures introduced after 9/11 attacks, which were designed to increase the subjective sense of security, even though it often remained loosely and unclearly related to its objective increase.
At least related to the phenomenon of legislative placebo, and perhaps its specific case is penal populism. Penal populism refers to shaping criminal law policy without expert input, under the influence of strong emotions provoked by media coverage. Laws created as a result of penal populism are characterized by a harsh attitude towards crime on the one hand and a default inefficiency in combating that crime on the other.
The subject we propose seems to also fit to some extent into discussions about the instrumentalization of law and the effectiveness of law as a means of regulating social life. Although the phenomenon of instrumentalization of law, mainly for historical reasons, had a ‘bad reputation,’ currently, under the influence of the pragmatic tradition (John Dewey), attempts to ‘demystify’ the negative image of this phenomenon by legal theorists (Sanne Taekema 2017; Andrzej Bator 2022) can be noted.
Referring to the theoretical framework of law as a symbol, we invite submissions on the politics of law during the COVID-19 pandemic. Submissions dedicated to topics such as:
• alternative models of combating the pandemic,
• legal policy during pandemics as a tool for consolidating power,
• pandemic and populism in power,
• symbolic uses of law,
• a concept of placebo and its application to the field of legislation,
• the relationship between the concepts of symbolic law, legislative placebo, penal populism,
• instrumentalization of law, (in)effectiveness of the law, including COVID regulations,
• positive approaches to the instrumentalization of law.
Contact: Mateusz Stępień (mateusz.stepien@uj.edu.pl), Wojciech Zomerski (wojciech.zomerski@uj.edu.pl; +48 660 840 480)