Fundamental rights and the role of jurisprudence in the covid-19 emergency

Abstract

This work offers an analysis of the difficult relationship betwe- en jurisprudence and science, analyzing the emergency situation caused by the Covid pandemic. In the last year, political power has imposed re- strictive measures on personal, economic, religious freedom, movement, expression and the right to education to prevent the spread of the infection. If at first the jurisprudence left wide discretion to the political power, in the last period it seems to require greater transparency of data and a rationa- lity and proportionality of the measures with respect to the objectives set. Although, in fact, the executive and legislative powers are better suited to confront science and make policy decisions, it is up to jurisprudence to set the boundary that political power cannot and must not cross. Emblematic in this sense is the decision on religious freedom of the US Federal Supre- me Court. The need for control to prevent abuses and arbitrators, however, raises the problem of the complexity of a hierarchy of fundamental values, of the criteria used, of the subject appointed to carry it out. These are cru- cial choices that pertain to the very concept of democracy. In particular, the essay focuses on the methods of originalist constitutional interpretation and the common good, highlighting their advantages and criticalities.