"As of this day and forever the people
(...) will have the concern to maintain intact
the regulations adopted in this Tribunal (...).
(...) Reverence and fear (...)
will avoid that citizens commit crimes,
except if they prefer
to annihilate the laws for their well-being (...).
No oppression, no anarchy: this is the motto
that citizens must follow and respect.19
(...) I hope it is not your intention to exacerbate
rage in the heart of the citizens
and in them create the thirst of homicides
which insanely throws brothers against brothers
until leading them to reciprocal extermination (...)."20
39.
Currently, the same task of conviction and persuasion are reserved to the
courts, to all courts, national and international. Besides the grounds for their
judgments, they must make the parties see that the decision reached is pursuant to
the applicable law. They may not, in my understanding, leave the doubts presented to
them by the parties without clarification, at any time during the processing of the
case, even in the form of requests, as in the present case of the Castro Castro Prison,
of Interpretation of a Judgment.
40.
Reason and persuasion of what is fair, the perennial leason of The Eumenides,
is what they must expose, in benefit of the parties. These are not mere elements of
the “operation of justice” (to use a “modern” or “post-modern” expression), but
instead subjects of the law. Both parties – the plaintiffs and the defendant – have the
right to wait for reason and persuasion of what is fair. This right has given way to a
human aspiration that has been transmitted from generation to generation,
throughout centuries.
41.
Currently said right has been invoked in relation to the tasks of contemporary
international courts. Actually, the judgment of a tribunal, - as has been stated by J.G.
Merrills, - must give “cumulative reasons” that substantiate its conclusion, so that it
has persuasion; this applies with even more strength in an international human rights
court, whose applicable law is oriented not so much by rules, but by general principles
of law.21 This is the only way in which law can be applied and at the same time
developed, to obtain results in the search for the full realization of justice, which
corresponds in my own point of view to the exercise of the international judicial
function.
42.
Studies from the past contrasted the "judicial restraint" with the "judicial
legislation",22 when referring to the distance between the orthodox vision and the
.
Versos 904-907, 918-922, and 925-926.
.
Versos 1138-1143.
19
20
.
J.G. Merrills, The Development of International Law by the European Court of
Human Rights, 2a. ed., Manchester, University Press, 1993, pp. 31, 34-35, 177, 205,
and 208-210, and cf. pp. 231-234 and 249-252.
21
.
Cf., v.g., Hersch Lauterpacht, The Development of International Law by the
International Court, London, Stevens, 1958, pp. 75-223.
22