In an article on the theory of law in the United States, H.L.A. Hart said that he moved between two extremes: the noble dream, a conception of the law as a rulebook that automatically applies to cases, without any mediation; And the nightmare, a conception in which law is a whirlwind of totally indeterminate guides, in which judges must always make decisions under their responsibility. In the first case, the law eclipses politics and illuminates only the solution, and in the second case the policy that eclipses the right and ends up deciding.
Citizens and the media imagine law as a noble dream and when they realize that it is not so, they fall asleep in the nightmare. Something of this happened septimana horribilis to the Spanish Supreme Court: first, the mismanagement of those who had to meet the corresponding tax at the time of establishing a mortgage, the lender or borrower; and then with another disregard of the European Court of Human Rights, for not having retained the judicial impartiality of Arnaldo Otegi. The idea of a nightmare extends between us. The Supreme Court, it seems, can decide in a sense or the contrary according to its arbitration.
And this is bad news for the trial of the process that awaits us this winter. If the Supreme Court does not listen to the opinion of many lawyers, if it is not able to practice judicial dialogue with other courts of the world, in particular with the Court of Strasbourg, the eclipse of the law for politics will be consummated and the decision What they will take will be questioned both in the streets of Catalonia and in the classrooms and seminars of the faculties of jurisprudence all over the world.
Return to the vigil
If he does, he will give the reason to Tocqueville (even if he applied to the nineteenth century United States) when he said that in America there was not a politically important issue that had not been resolved judicially. But if the court remembers that extremes tend to distort our view of things, it can produce a phrase that moves away from the noble dream and nightmare, a phrase appropriate to the principles of strict legality and rigid jurisdiction, which govern Criminal law in a constitutional democracy . And then, we will leave the land of dreams to return to the waking hours. And it is very convenient that the wise man guide, well awake, pens -or the keys of the computer-of our judges of the Supreme Court.