4 9. This is a very persuasive argument in support of the need for the individualization of sentences, as a capability intrinsic to the exercise of judicial power. In addition, in the 1960s, Marc Ancel pointed out the then discernible tendency, of gradual abandonment of the so-called “mandatory nature” of the death penalty, 12 which today only exists in a small number of countries (above all former British colonies). This is due, in part, to the growing influence of the French concept of “mitigating factors,” which has recognized the discretional power of national tribunals to impose sentences other than capital punishment, 13 upon determining the different levels of criminal responsibility. 10. In the present Judgment on the merits and reparations in the Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago Case, the Court has correctly resolved this question in the circumstances of the cas d’espece, 14 upon finding that the Offences Against the Person Act of 1925 of Trinidad and Tobago orders the automatic and generic imposition of the death penalty for the crime of murder and fails to recognize that murder can have varying degrees of severity, which should be duly taken into account and evaluated by the judge, especially when the most valuable legal right, the right to life, is at risk. 11. The arbitrary nature of the aforementioned Offences Against the Person Act in particular, and of Trinidad and Tobago’s domestic law in general, 15 is manifested in different phases of the judicial process, such as the determination of criminal responsibility (without taking into account the particular circumstances of the criminal), and sentencing (with the “requirement” that capital punishment be imposed in murder cases – paras. 103 and 104), as well as blocking the effective reconsideration or review (paras. 186, 188, and 189). It consists of an arbitrary Act that is fons et origo of further arbitrary acts. As the Inter-American Court correctly and categorically affirms in the present Judgment, “the way in which the crime of murder is punished in the Offences Against the Person Act is in and of itself a violation of the American Convention on Human Rights.” (para. 211) 12. Indeed, arbitrariness is found whenever a legal procedure does not conform to the dictates of reason – as determined by the rectae rationis – but rather is issued only by the will of power (and the unlimited use of it). It is, thus, perfectly possible that an order is arbitrary, even though it is based on a positive law. This occurs when the dictates of said law are allowing to trump reason, obeying only “the fortunate whim of the person in power.” 16 Acting with discretion (duly accounting for the circumstances of a specific case) is not the same as acting arbitrarily; acting with discretion means “being guided by general principles, applying them to the 12 p.85. Capital Punishment, N.Y., United Nations, 1962, p. 11, para. 14, cited in R. Hood, infra note 13, 13 R. Hood, The Death Penalty: A Worldwide Perspective (A Report to the United National Committee on Crime Prevention and Control), Oxford, Clarendon Press, 1990 (reprint), p. 87. 14 As developed in paragraphs 103-104, 106, and 108. 15 With respect to petitions for amnesty, pardon or commutation. 16 L. Recanséns Siches, Tratado General de Filosofía del Derecho, 7th Edition, México, Editorial Porrúa, 1981, p. 216 (Translation by the Secretariat of the Court).