"The protection of health, an objective of constitutional value which is not intended to destroy other freedoms"

Thibault Mercier is a lawyer.

“

It is with these words that the Constitutional Council confirmed on May 11, 2020 the constitutionality of the law extending the state of health emergency, including the possibility for the Government to confine the population or to impose the isolation of patients. .

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The argument of the Wise Men did not differ on November 13, regarding the extension of the second state of health emergency.

The Council of State is not left out since it too, in the words of its Vice-President, relies mainly on "

" to obediently validate the vast majority of decisions taken by the Government since the start of the health crisis.

Freedom to undertake, to demonstrate, to worship, the right to respect for one's private life, no need to go any further to realize that it is in this way most of our fundamental freedoms and rights which have been seen and are still being restricted seriously and durably by this constitutional objective of health protection.

Exit therefore the work of the jurist whose art has nevertheless, since ancient Rome, to tend towards a fair and equitable solution by balancing different interests.

There have been many appeals filed by certain French people in recent months against clearly disproportionate legislative and regulatory measures.

And one can wonder if this is not a blank check that both the legislator and the executive have received from our supreme jurisdictions since almost all of these requests have been rejected.

Exit therefore the work of the jurist whose art has nevertheless, since ancient Rome, to tend towards a just and equitable solution by balancing different interests if not contradictory, at least divergent.

The Roman Digest is unfortunately no longer on the program of law universities and since the appearance of Covid19 there is no longer any question for the judge to show restraint in the arbitration between our different rights and freedoms.

And some administrative court rulings moreover look more like scientific reports than legal decisions.

Health now tends to become a legal obligation to be fulfilled at all costs, subjecting our law to scientific injunction from part of the medical profession and experts of all kinds.

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But why does this concept of "

", initially forged with the aim of moderating fundamental rights, now come to destroy them?

How did the judges so easily give up their power of control in this health crisis?

The collusions between the executive and the Council of State denounced by the journalist Yvan Stefanovich without his "

" are only part of the answer.

Even more than health or institutional, it seems that this crisis is also societal or even civilizational.

How have politicians, judges and citizens been able to forget that health, according to the very definition of the WHO, is not just the absence of disease or infirmity?

The safety of the body, its comfort and its preservation have therefore become major concerns for our modern societies.

Exegesis of the Homeric poems, Sylvain Tesson, during “

”, questioned us about the meaning of our life: should we “

".

And to remind us of the ancient wisdom of the Greeks who accepted "

" and that there was "

”.

From Aristotle to Saint Thomas Aquinas, European civilization has indeed persisted in allowing the development of both the soul and the body.

The length of life did not matter then as long as it was "good".

But gradually developed in the West a biopolitics (Foucault) abandoning the soul to turn to the conservation of biological life and material well-being.

The safety of the body, its comfort and its preservation have then become major concerns for our modern societies: the obsession with safety (in road safety policies for example) or contemporary hygiene are edifying examples.

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We would now like to avoid death at all costs and rather than letting it hang over the horizon of our lives, we potentially allow it to merge into all the actions of our lives.

The quasi-psychosis that has developed in the West since the appearance of this new crowned virus has shown us: our fear of death has become such that it now condemns us to obsession with zero risk and to inaction.

The docile acceptance by public opinion, or, even worse, its insistent demands for ever more restrictive measures of our public freedoms would thus come from our dismay in the face of death to which we have become unable to attribute a meaning.

We refuse to take the risk, however reasonable, of living for fear of catching a disease whose mortality rate does not exceed one percent.

We have lost this disposition of the soul which consisted in adapting to the inevitable, even in suffering, rather than dreaming of its impossible disappearance.

What we reject in this crisis, moreover, is the tragic side of life seen as an apprenticeship to death.

We have lost this disposition of the soul which consisted in adapting to the inevitable, even in suffering, rather than dreaming of its impossible disappearance.

Lost in the middle of the ocean and without any prospect of salvation we then attach ourselves to our belief, the last, in reason and science supposed to allow the salvation of humanity, which leads us for example to give full powers to the Scientific Council.

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We could be criticized for speaking while people are dying.

On the contrary, it seems urgent that the jurists of our country reopen both their textbooks of philosophy and of Roman law in order to relearn that politics and law require a fair and measured balancing of our rights and freedoms.