Luis Rubio

“Great cases [before de Supreme Court] like hard cases make bad law. For great cases are called great, not by reason of their importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgement.” Oliver Wendell Holmes* thus characterized the issues that, due to their high political explosiveness, end up yielding results of dubious practical relevance, if not counterproductive. When the issues become litmus tests of loyalty and identity definition, the products inevitably end up being extreme, with little probability of contributing to solving the problem that they were intended to address.

This week Mexicans went through two burning issues that call into question the stability and collective sanity in terms of security, one of the most transcendent issues in public life today. Both preventive imprisonment without a ruling by a judge and the role of the National Guard are crucial elements for the security of the population. In both cases, the positions of politicians, scholars, commentators and authorities in charge for these topics were polarized to such an extent that it was impossible to develop a responsible debate inside or outside the legislative sphere and the Supreme Court itself.

The very notion of preventive imprisonment without a judge’s ruling is contemptible because it defeats any basic conception of justice. A person who is sent to jail for the mere presumption of a crime and without the intervention of a judge is something unacceptable in any civilized society. At the same time, it is impossible, and clearly absurd, to ignore the context in which that figure came to exist. In a country where hundreds of thousands of homicides, robberies, kidnappings and extortions are committed every year, crimes that almost always go unpunished, it is obvious that Mexicans are far from living in a framework of civilization in which the rules of the game are respected in state institutions and between these and private individuals.

Unjustified preventive imprisonment was conceived for violent crimes that merited special treatment to avoid evading justice, such as drug trafficking, homicides, and the like. The problem was that this figure was extended to an endless list of potential crimes, with which it ceased to be a mechanism for highly serious cases due to the violence that they entailed, to become an instrument of virtual extortion by tax, administrative and political authorities. Thus, the issue went from a mechanism of limited use to an instrument of unlimited abuse. Paradoxically, completely eliminating the mechanism could imply greater impunity because now it will be the judges who would have to rule on the so-called justified preventive imprisonment, which would expose them to reprisals and infinite corruption. A judge could be forced to abdicate his or her responsibility in order to protect his family or, alternatively, to accept a payment in exchange for not ordering preventive detention. In a similar situation, Colombia resorted to the so-called “faceless judges” to avoid personalizing these decisions, with poor results.

The context matters because Mexicans do not live in Denmark, nor do they have the implicit security strategy of that nation, its police, judicial officials or institutions. One would have to be blind to pretend that what works there is applicable to the Mexican reality without further ado.

The National Guard, whether formally inside or outside the army, is only one component, not the largest, of what a security strategy should be. The military -by far the majority of the members of the contingent that makes up the National Guard- are not trained to be policemen, it is not their function, nor is it a solution to the problem of insecurity and violence that affects the country. Although its formal inclusion in the Ministry of Defense has unleashed enormous passions -and sensible legal arguments- the “debate” lacks the nodal component: security begins from below; it cannot be imposed from above by presidential mandate, a vice that has accumulated since 2007.

The central characteristic of all countries in which their population enjoys full security is that local authorities are responsible for maintaining order and preserving peace. It is the corner policeman, as well as on the local authorities in charge of the justice procurement system, on whom the security of the population depends. Mexico went from an authoritarian system with strong central control to an immense disorder in which most of the state and municipal authorities are not responsible for anything.

In this context, the role of the National Guard should be to create conditions of peace and stability for the development of effective police and judicial systems at the local level, a process that would take years, not a few months. As it stands today, the National Guard serves to temporarily stabilize a locality, a stability that disappears as soon as they move to another part of the country.

De la Boétie** writes that “It has always happened that tyrants, in order to strengthen their power, have made every effort to train their people not only in obedience and servility toward themselves, but also in adoration.” Nothing will change so long as this remains the same.


*Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904).

**The Politics of Obedience