8
have not yet been sufficiently dwelt upon in the domain of Law (supra), they have not
passed unnoticed in the philosophy30 and in the sociology of law (cf. infra).
20.
In effect, in social environments strongly marked by a communitarian outlook
there prevails a feeling of harmony between the living and the dead, - as demonstrated
in the present case Bámaca Velásquez. In fact, at least one trend of the legal doctrine
on the matter has envisaged, as passive subject of the right to respect for the dead,
the community itself (starting with the relatives) to which the dead belonged. The
conscience of time and death, and the anxiety resulting therefrom, are "contained" or
circumscribed by the belief in the survival or rebirth. Thus, in the most ancient
graveyards that one knows of (the Neanderthalese), the dead were buried in a foetal
position, what suggested the belief in rebirth31. The funerals are important rites, which
form part of the cultural legacy which self-perpetuates in the succession of generations,
and contribute to face the reality of death and the anguish provoked by it32.
21.
The juridical conscience is gradually forming itself and evolving with the
succession of generations in search of the realization of the good in face of human
suffering. The accumulation in time of the cultural manifestations, the traditions and
ideals have conformed the moral patrimony of the peoples, which, on its turn, has
repercussion in the evolution of Law. Thus, we who are alive enjoy rights which have
been affirmed by past generations, and have the duty to contribute to the evolution of
such rights to the benefit of future generations. Intergenerational equity is nourished
by the spirit of human solidarity.
22.
As it has been very well pointed out, "for after the existence one does not need
rights, but one has duties. (...) The just conscience (...) will be understanding and
accomplishing a legal relationship throughout time, between those who succeed each
other without living together; (...) also in this one has to practice the neminem laedere
and for that, previously, the suum cuique tribuere"33. In the present Judgment on
reparations, the Court has duly warned that "the care with the mortal remains of a
person is a form of observance of the right to human dignity" (par. 81).
IV.
The Precariousness of the Human Condition and the Universal
Human Rights.
31.08.2001, Joint Separate Opinion of Judges A.A. Cançado Trindade, M. Pacheco Gómez and A. Abreu Burelli,
par. 15.
30
.
As revealed, in the XIXth century, among others, by the writings of Arthur Schopenhauer, as
exemplified by his Meditaciones sobre el Dolor del Mundo, el Suicidio y la Voluntad de Vivir, Madrid, Tecnos,
1999, p. 88.
31
.
Edgar Morin, O Paradigma Perdido: A Natureza Humana, 6th. ed., Sintra/Mem Martins, Publs.
Europa-América, 2000, pp. 93 and 135-137.
32
.
Ibid., p. 95, and cf. p. 165. Human knowledge - including the scientific one - has not succeeded to
provide an answer to the transcendental problems faced by the human being (such as that of his destiny); it is
possible that we still are at the "beginning of knowledge"; ibid., p. 212.
33
.
N. Alcalá-Zamora y Torres, La Potestad Jurídica sobre el Más Allá de la Vida, Buenos Aires, Ed. Jur.
Europa-América, 1959, pp. 22 and 25-26, and cf. pp. 136, 175 and 185.