Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

   

In terms of privacy and data protection related to the patient's health, the Spanish Supreme Court had maintained a solid jurisprudential line, which clearly reflected the requirement for health professionals in the safeguard of professional secrecy and the protection of patient's data. The Sentence of analysis, of January 10, 2018 of the Second Chamber of the Supreme Court, is striking for lowering the sentence to a nurse who accessed systematically from 2011 to 2015 to the medical history of his former son-in-law and his new partner. To this end, the High Court grants relevance to the fact that the convicted woman repeatedly stated that she was acting in defense of her grandchildren, from which she inferred that she was in a state of stubbornness. This consideration could open a way, perhaps unfortunate, to the illegitimate access of professionals to the health data of former relatives and even of other third parties, without taking into account not only the seriousness of the violation of the right to privacy of the patients, but also the fact that the author of such aggression is a professional perfectly aware its significance.

The aim of this article is to examine how and why – in the current legal context, and because of some relevant changes that are ripening – the legal practice is supported by a solid professional ethics of the legal roles, summed up in the respect of the rule of law. Other elements that in the past seemed crucial to explain the legal order nowadays are inadequate and a legal theory without considering the role of lawyers is incomplete. After indicating the changes in the background, it will follow an analysis of the legal professional ethics and the reasons of its specificity. Against what is supported by the recent literature about eliminativism in legal philosophy, the perspective of professional ethics implies an inquiry about the concept of law and the question about the autonomy of law from Politics and morality. The answer to these questions requires to confute three thesis: the irrelevance of the concept of law for its practice; the realistic reduction of law to power; the moral monism in the field of obligations.

The article seeks to deepen the meaning of terms such as secularization and secularism, also to distinguish between an ideological attitude regarding dialogue between religion and the public sphere, and the current open guidelines for interaction between religious discourse and public discourse as a reflection of continuity between the private sphere and the public sphere. All this has a lot to say on the thought about law, about the foundation of the rights and about the history of juridical civilization, especially in the western culture: for which the role played by the Christian religion in particular is essential for the understanding of principles such as equality and secularity as well as the foundation of human rights.

The author approaches the reasons for the general lack of satisfaction in civil society: on one hand the indiference of those who are in a better position and on the other the increase of populism based on resentment and narcisism. Against these errors a rebellion against social and economical unjustice is proposed. A rebelion that should come with a unknowledment for the creation.

In order to imagine the law’s future, we need reconstruct its past. The evolution of law in western countries disclaim a process of positivization: the law become and it is conceived as positive, i. e. less or more contingent, available for change. In more recent areas of law, such as constitutional, international and European Union’s law, However, inverses processes occur: the de-positivization of law. In constitutional case-law, in particular, an ever more crucial role is played by implicit norm as equality, reasonabless, proportionality. These principles are positive only in a very weak sense of the term: in reality, they are only a part, and a necessary part of the very concept of distributive justice.

Europe is at a crossroad: in front of masses of foreigners it could be tempted to close the door. It would mean, on the earth, to erect walls or stretch spiny yarns. On open sea, it would mean to repudiate and violatie the law of the sea. As a matter of fact, this door would inevitably be demolished. On the other hand, Europe could decide to keep the door open and try to govern this phenomenon adopting welcome and cooperation policies, creating new opportunities and rights for different types of refugees (political, economic, environmental). All of the mentioned suggests reflecting on peace, rights and the environment. Immigration is first of all and foremost an individual story, the story of those who seek hospitality and non-violence.