According to a certain idealized and profoundly erroneous image, while disagreement and controversy reign in politics, the legal sphere is a haven of light and clarity in which everything is firmly established according to immutable principles and rules. Faced with the turmoil of the political, the infallible stillness of the juridical. If there were still any defenders of this kind of picture, I suppose that the pandemic will have taken with it, along with tens of thousands of lives, any certainty they might have harboured in this respect.
Already in May of this year we were able to witness a first demonstration that, in terms of its security and certainty, the legal is far from being anything like a mathematical theorem. Once the state of alarm had expired, the High Courts of each autonomous community had to endorse, or not, the health measures agreed by the different autonomous governments. The judicial discrepancy was so profound that it affected, first, the mere question of the possibility of such measures being taken. According to the High Court of Justice of Valencia, Law 3/1986 not only allowed the autonomous governments to adopt one or other measures, but if this were not the case, such law “would have no reason to exist or sense”. An interpretative forcefulness that did not convince their counterparts in the Basque Country, who considered that “our legal system does not allow the autonomous communities to agree, outside the state of alarm, restrictive measures of fundamental rights with a general non-individualized character”.
Of course, if there was not even agreement when it came to deciding whether the measures were legal or not, imagine when it came to deciding what measures. There has been no court or judge who has not launched – with a forcefulness and certainty worthy of a better cause – to establish nothing less than judgments of proportionality between the health measures adopted and the foreseeable effects of the same in order to mitigate the pandemic. And so we have seen judges endorse the curfew and others prohibit it; judges establishing the relevance of perimeter closures and others denying it; some estimating the effectiveness of restricting meetings and others ruling, very seriously, that it’s a case of “peel to the sea”; and those beyond, finally, calibrating the exact number – not one more, not one less – of diners that it is advisable to share a table on a terrace in order to prevent the spread of the virus.
The recent ruling of the Constitutional Court has only culminated this surprising drift. Not in terms of content – we have not seen, as yet, the members of theThe Court of Appeals has been called the “epidemiologist of the High Court”, but, at the rate we are going, everything will be fine – but it is in terms of the complete legal vagueness that the sentence itself reflects. The dissenting opinions also reveal completely different arguments, not only in their conclusion, but above all in their perspective, in their mere conception, if you like. And, most significantly, there is no clear ideological line. It is curious: ideology, although always deplorable when mixed with the legal, at least responds to a previous order, to a structure, to a certain interpretative stability. Here, not even that. The word is gibberish, as it was in May with the different decisions of the Autonomous Courts. And if the law can say everything, then it is clear that it says nothing.
A few months ago, a judge – I think from the Basque High Court, but I’ll spare myself the effort of looking on the internet to find out who it was: who cares – said something to the effect that epidemiologists were family doctors with extra training. If that is the mentality of part of the judiciary, it is not surprising what is happening. I don’t know what unheard-of bias is pushing towards this state of affairs – only in Spain, it seems – but at least one thing is clear to me:“salus pública” does not mean, as many insist on translating it, “public health”; it means ” publicsalvation “.
It is the doctors, the scientists, the health workers and the health teams who are saving our lives. It is they – and the politicians we have elected – who are leading that campaign of salvation and making the decisions they think best. Of course they are limiting our rights: there is no need for the courts to remind us of this, we know it and we understand it from the first death. If there were an overwhelming, immaculate, stony and undisputed legal consensus, fine. But, as it is obvious that there is not, there is a very simple way out, which is perfectly legitimate from a legal point of view according to many interpretations, and that is to let the medical specialists do their job and not to put sticks in the wheels. They answer to scientific evidence and to their vocation of service. Politicians answer to us every four years. Judges apply the law. So, if they are not very, very, very, very clear and there are people dying, let them do it.