6
14.
As already warned, it ought not to pass unnoticed that the first resolutory point
of the present Judgment determines that the respondent State "must find out the
mortal remains of Efraín Bámaca Velásquez, exhume them in the presence of his widow
and relatives, as well as to give them to these latter". The Court has attributed due
importance to this obligation of the public power, as a measure of reparation, in the
circumstances of the concrete case. As it ensues from the present Judgment, the
suffering of the dead has an incidence into the very determination of the reparations,
even though those no longer have legal personality. The surviving realtives are
beneficiaries of the reparations also as a result of the sufferings undergone in life for
the dead relative. Thus, the projection of human suffering in time is manifested (with
repercussions in the domain of Law) in distinct ways: not only in the course of our lives,
of the cammin di nostra vita, but also in the relations between the living and their dead.
III.
The Passing of Time, and the Repercussion of the
between the Living and the Dead in the Law.
Solidarity
15.
There is a point which deserves to be retaken and considered in greater depth in
relation to the present Judgment on reparations which has just been adopted by the
Court, namely, that pertaining to the links of solidarity between the dead and the living.
In fact, the relations between solidarity and the Law have been object of attention from
a long time. But the impact of the International Law of Human Rights into the
contemporary legal science ought to, in my view, lead us to examine the theme from a
wider perspective, in time. By the end of the XIXth century, for example, the study of
those relations paved the way to "solidarism", a school of thought which had in Emile
Durkheim a precursor and influential theoretician24.
16.
Years later, in his book L'État, le Droit objectif et la loi positive (1901), Léon
Duguit retook "solidarism"25, as from the warning that human beings can only live in
society, the fundamental fact of which is "social solidarity": thus, the damage caused to
a person affects the whole social tissue26. The human being suffers and dies alone, but
the sum of human sufferings es minor when each one lives in relation with the others;
the precariousness of the human condition fosters
solidarity,
which
renders
suffereing less unbearable and unites the members of the
24
.
Above all in his book La division du travail social (1893). But the writings of Durkheim on "social
solidarity" are marked by ambigüities and a certain social determinism.
25
.
As from the community of interests and the division of labour in the social milieu. To him, the rules of
Law are born ion the human conscience, attentive to the social and individual ends. The State power is limited
by Law. The individual conscience expands to the extent that each one understands solidarity. L. Duguit,
L'État, le Droit objectif et la loi positive, Paris, A. Fontemoing Éd., 1901, pp. 10-11, 13-15 and 30, and cf. pp.
18, 25 and 81.
26
.
Ibid., p. 24. To L. Duguit, with the development of the conscience, the human being comes to
conceive himself as bearer of solidarity, and to understand, on the one hand, that in promotinb solidarity one
would benefit himself and everyone; and, on the other hand, that in violating a rule of conduct one violates it
not only in relation to himself, but also in relation to everyone, and that an attempt against justice is an
attempt against oneself and against all. According to him, egoism is nothing but the "imperfect notion of social
solidarity", or simply ignorance (ibid., p. 103).