Juan-José López Burniol, December 18, 2021
It is not a problem of laws
I am in favor of reforming the 1978 Constitution in the terms of the report that the State Council prepared for the Government in 2006, setting four urgent sections: 1) The suppression of the preference of men in the succession to the throne; 2) The reception in the Constitution of the process of European construction; 3) The inclusion of the name of the autonomous communities; 4) The reform of the Senate. This last point is the most important, as it constitutes the culmination of the federal State enlightened as an autonomous State by the Constitution itself. It is a question of being or not being, since at this point in its history, Spain will be federal or it will not be.
Now, one thing is to defend the reform of the Constitution and quite another is to attribute to the constitutional text – to its gaps, ambiguities and errors – the cause of the current shipwreck of Spanish politics, whose main features are a stolid precariousness in the ideas, an abject selfishness in the objectives and a conceited arrogance in the forms. Precariousness, selfishness and arrogance that are not ailments of our first law, but of specific people – men and women – who command or hope to command. Specific people, because I am not referring to the entire political class, in which there are more behaviors worthy of appreciation than disdain.
It cannot be argued that the current political morass is due to an outdated Constitution
To clarify the reason why Spanish politics sometimes becomes a field for Agramante and other times a courtyard for Monipodio, an example that I draw from my extinct professional life is worthwhile. Many times, upon receiving the last will of a testator concerned about a family problem, and who for this reason wanted to grant a long, complex and casuistic will, I would say to dissuade him from doing so that a will must be short, clear and specific, as well as that it has to be granted thinking that you are going to die tomorrow and not in a few years, because during this time circumstances can change to the point that the testamentary provisions become contrary to the will of the testator (without going further far, by the change of value of things distributed in legacies). For all of which I concluded that the most perfect will, if it is executed by bad executors, will cause untold problems, while a will without pretense of covering everything, if it is executed by good executors, will not generate discrepancies between the heirs. What is decisive, therefore, is not the testamentary text, provided that it conforms to the will of the testator, but its proper interpretation and prudential compliance.
All laws (a will is a ‘lex privata’) must be interpreted with caution. I learned from Professor Álvaro d’Ors that the legal virtue par excellence is not justice, but prudence; that there is no absolute justice, but only the justice of the concrete case, and that, precisely for this reason, the law is, after all, what the judges say. Hence the capital importance of the correct conduct of those who have to apply the laws in all areas (not only in the judicial), which requires: 1) Knowing them; 2) Interpreting them according to the social reality of the time in which they are to be applied, taking into account their spirit and purpose; 3) Applying them with the prudence that the contemplation of the specific case requires.
Therefore, without prejudice to modifying the laws as many times as necessary, the mere fact that forty years have passed since their promulgation does not oblige them to be changed, especially when they have provided indicated services, as is the case of the 1978 Constitution. Only from ignorance or with the will, more or less explicit, to end the regime of 78, it can be argued that the current Spanish political morass is due to the fact that the Constitution is obsolete. Just as the financial crisis of 2008 was not a crisis of the market, but of merchants (of principles, of values, of conduct), the current political crisis is not a crisis of laws, but of politics (of principles, values, of behaviors). Juan Luis Vives (‘De disciplinis’) used to say that laws must be easy, open and few. Well that!