12
34.
In my opinion, given the encouraging intersection of purpose between
domestic and international legal systems in regard to safeguarding human rights,
there is no reason why domestic public law should not take into account the
application of international norms of human rights protection. In a Seminar for
Caribbean judicial officers in Barbados ten years ago, the participants specifically
emphasized the need to reduce the décalage between the considerable evolution of
International Human Rights Law in the past decades and the “narrower perspective”
of contemporary Caribbean constitutionalism. 46 The foundation for bridging this gap
appears to be already established, as in the last years, Caribbean legal doctrine has
directed its attention towards the advancements made in the normative and
hermeneutic realms of human rights protection at the international level; 47 this trend
should continue in the same direction.
35.
In an era such as the present, in today’s overcrowded, mechanized world, in
which fewer and fewer people actually stop to think, it seems to be the opportune
moment to refer to the insight of the German jurist Gustav Radbruch, who, in his last
years of teaching in Heidelburg (in the middle of the 20th century), formulated an
eloquent defence of natural law, which delves into both international and criminal
law. For Radbruch, the “entrance” of international law into the sphere of legal
science was brought about “thanks to natural law.” 48 According to his vision, the
resources provided by natural law “are immense,” namely
[Natural law] opened up the eyes of humanity to reveal its chains, thus teaching
humanity to shed itself of them. In the name of the inalienable human right to freedom,
it struggled against slavery (…); undermined the absolutism of government (…), It
safeguarded individuality from the arbitrariness of police abuses and proclaimed the idea
of the Republic of Law; it fundamentally corrected criminal law, by opposing justice that
is based on arbitrariness and establishing specific categories of crimes; it eliminated the
corporal punishment of mutilation as incompatible with human dignity, it abolished
criminal procedures employing torture and persecuted the persecutors of witches.
(…) Without the any reservations whatsoever, we should thank the proponents of
natural law, particularly those that brought freedom to the 19th century, not only
through the influence that they exercised over the legislative process, but also through
the influence that they exercised over its practice, such as the shame brought about by
the insistence to continue applying the letter of the law in applying practices of corporal
punishment and torture provided for in a judicial ordinance from the times of Carlos V. 49
46
Cf. Derrick McKoy, “Capital and Corporal Punishment in Human Rights Law,” in Seminar for
Caribbean Judicial Officers on International Human Rights Norms and the Judicial Function (Proceedings of
the 1993 Barbados Seminar, eds. O. Jackman and A.A. Cançado Trindade), San José, Bridgetown, 1995,
p.51-76.
47
Cf. e.g., Lloyd Barnett, “Human Rights and the Machinery of Justice- Caribbean Judicial Approach
to Constitutional and Conventional Human Rights Provisions,” in Seminar for Caribbean Judicial Officers…,
op. cit. supra n. (24), pp. 31-49; and cf., M. Demerieux, Fundamental Rights in Commonwealth Caribbean
Counstitutions, Bridgetown, University of the West Indies, 1992, pp. 115-123, 134-135, 144, 152 and
301.
48
Cf. e.g., Association Internationale Vitoria-Suárez, Vitoria et Suárez- Contribution des théologiens
au droit international moderne, Paris , Pédone, 1939, pp. 3-170; L. Le Fur, “La theorie du droit naturel
depuis le XVIIe. siècle et la doctrine moderne,” 18 Recueil de Cours de l’Académie de Droit International
de La Haye (1927) pp. 297-399; J. Puente Egido, “Natural Law,” in Encyclopedia of Public International
Law (ed. R. Bernhardt, Max Plack Institute), vol. 7, Amsterdam, North-Holland, 1984, pp. 344-349; A.A.
Cancado Trindade, O Direito Internacional em um Mundo em Trasformação, Rio de Janerio, Ed. Renovar,
2002, pp. 540-550 and 1048-1109.
49
G. Radbruch, Introducción a la Filosofía del Derecho, 3a ed., Mexico/ Buenos Aires, Fondo de
Cultura Económica, 1965, p. 112-113 (Translation by the Secretariat of the Court).
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