In an article on the theory of law in the United States, H.L.A. Hart said that it was moving between two extremes: the noble dream, a conception of the law as a book of rules that apply automatically to the cases, without any mediation; And nightmare, a conception in which the right is a whirlwind of guides totally indeterminate, in which the judges always have to make the decisions under their responsibility. In the first case the law eclipses the policy and only illuminates the solution, and in the second case is the policy that eclipses the right and ends up deciding.
Citizens and the media imagine the right as a noble dream and, when they realize that it is not so, they fall asleep at nightmare. Something of all this has happened septimana horribilis to the Spanish Supreme Court: first, the mismanagement on who was to satisfy the tax corresponding to the time of establishing a mortgage, the lender or the borrower; and then with another disavowal of the European Court of Human Rights, for not having preserved the judicial impartiality of Arnaldo Otegi. The idea of 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 so many lawyers, if it is not able to practice judicial dialogue with other courts of the world, especially with the Strasbourg Court, the eclipse of the law for the policy will be consumed and the decision What they take will be questioned both in the streets of Catalonia and in the classrooms and seminars of the faculties of law around the world.
Return to the wake
If he does this he will give the reason to Tocqueville (although he applied it to the United States of the nineteenth century) when he affirmed that in America there was no politically important question that did not end up being judicially resolved. But if the court remembers that the extremes tend to distort our vision of things, it may produce a sentence that moves away from the noble dream and nightmare, a sentence adjusted to the principles of strict legality and strict jurisdiction, which govern Criminal law in a constitutional democracy. And then, we will leave the land of dreams to return to the hours of wakefulness. And it is very convenient for the wise to guide, well-awake, feathers -or the computer keys- of our Supreme Court judges.