As laws are written in 'universal terms' they offer inadequate guidance for those difficult cases that do not fall neatly under one general rule or another. While Aristotle is clear that written laws are essential to secure justice in a political community, he is quick to recognize that alone they are insufficient to achieve this aim. Bridging the gap between legal principle and concrete situation is Aristotle's concept of epieikeia: that virtue which 'corrects' the law where it falls short. (...) Through an acute attentiveness to relevant mitigating factors, epieikeia allows the judge to discern what -- beyond rigid application the law -- a just decision entails. However, though triggered by and tied to particular circumstances, epieikeia does not sanction egregious deviation from established law. This is because it serves the ends of 'universal', or 'natural' justice and so is guided, and therefore constrained by its fixed and unchanging principles. In conclusion, this article explores the normative repercussions of incorporating epieikeia into legal decisions, specifically how it might work to transform justice into a virtue which promotes mercy, kindness, and forgiveness. (shrink)

Lo studio esamina il tema della legge umana e dell'equità , che risulta di notevole importanza per la comprensione della filosofia pratica aristotelica, in Roberto Grossatesta, Alberto Magno e Tommaso d'Aquino a partire da Ethica Nicomachea V. 10. Dopo una breve premessa in cui si espongono le linee guida del saggio, l'A. si sofferma sul capitolo aristotelico, per poi esporre lo status questionis nei canonisti medievali e nei testi pastorali prima della ricezione dell'Etica; l'ultima parte è dedicata al significativo apporto (...) che questa ha dato alla discussione medievale. Se Grossatesta fa ampio ricorso a tale nozione nella discussione del rapporto tra diritto naturale e diritto positivo, Alberto riafferma l'importanza di tale concetto e l'opportunità di utilizzarlo quando la legge, per il suo carattere di universalità, risulti inadeguata e sia necessario ripristinare la giustizia. La trattazione più sistematica è comunque offerta da Tommaso d'Aquino, in particolare nel commento all'Ethica Nicomachea e nella Summa theologiae, che impiega la nozione di aequitas in un senso più vicino a quello aristotelico che a quello dei canonisti o alla tradizione del diritto romano. La filosofia aristotelica è così all'origine di un rinvigorimento della discussione sull'aequitas canonica che offrirà nuovi sviluppi nel campo della filosofia morale e del diritto in epoca tardomedievale. (shrink)

The practical reinterpretation of positive law in the light of its originating principle, oriented to the common good, need neither be a dispensation from the law, nor a discrediting of the legislator, nor a judgment on the law itself, nor an interpretation of said law, but rather it is a virtue, i.e. that of epieikeia. This is made necessary by the fact that a law cannot refer rightly to all cases; in some cases it will fail, and thus the (...) legislator writes the law to cover what occurs in the majority of the cases, without ignoring the fact that in certain cases there will be a failure of the law to apply. This is, according to St. Thomas, that which is contemplated by the epieikeia in order to reinterpret positive law in the light of natural law. (shrink)

O texto volta-se ao estudo da noção de epieikeia (equidade) na tradição aristotélica, procedendo-se à análise do instituto e a uma tentativa crítica de conceituação, destacando-se o problema da generalidade da lei e da singularidade dos casos. Ainda, vê-se brevemente a epieikeia na obra de Tomás de Aquino.

One question that has sometimes cropped up in the debate on triage and the management of scarce healthcare resources concerns patients’ merits, demerits, and responsibility with regard to their own medical condition. During the current pandemic, some have wondered, when it comes to accessing healthcare, whether patients who have refused vaccination—despite the availability of vaccines and pressure to get vaccinated from the health authorities—should be given the same priority as patients who have diligently undergone vaccination in accordance with the authorities’ (...) recommendations. The issue of patients’ merits and demerits is not new, and it did not emerge with the pandemic for the first time. In the past, the question was often posed whether terrorists have the right to receive the same treatment as their victims, with the same degree of priority, all clinical conditions being equal. Another issue that has been raised concerns patients suffering from diseases caused by unhealthy lifestyles that they have freely adopted: drinking, smoking, eating fatty foods, practising extreme sports, etc. The conclusion reached in the present article is that it is indeed possible to identify certain general rules for cases of this sort, as is shown by the literature on the topic. However, slavishly following these rules, even in exceptional cases for which it is impossible to make detailed provisions, can lead to disastrous consequences. Therefore, following Aristotle, the article seeks to take account both of the rule of justice and of equity, which is a form of “situational justice” capable of filling the gaps of general norms in the light of concrete cases. (shrink)

Equity in Early Modern Legal Scholarship takes the reader through the vast amount of legal writings on equity that were published in continental Europe in early modern times. The book offers the first comprehensive overview of the development of the legal concept of equity through the sixteenth and seventeenth century. During this time, equity scholarship broke with its medieval past and entered a lively debate on the nature and function of the concept. Lorenzo Maniscalco links these developments to the early (...) modern identification of equity with Aristotelian epieikeia, a conceptual shift that brought down the barrier that divided theological and legal writings on equity and led to its development as a tool for the interpretation and amendment of legal rules. (shrink)

Aristotle claims that in some extenuating circumstances, the correct response to the wrongdoer is sungnōmē rather than blame. Sungnōmē has a wide spectrum of meanings that include aspects of sympathy, pity, fellow-feeling, pardon, and excuse, but the dominant interpretation among scholars takes Aristotle’s meaning to correspond most closely to forgiveness. Thus, it is commonly held that the virtuous Aristotelian agent ought to forgive wrongdoers in specific extenuating circumstances. Against the more popular forgiveness interpretation, I begin by defending a positive account (...) of sungnōmē as the correct judgment that a wrongdoer deserves excuse since she was not blameworthy. I then argue that since sungnōmē is merited on the grounds of fairness, this shows that both the forgiveness interpretation and a third, alternative interpretation of sungnōmē as sympathy mischaracterize both the justification for sungnōmē and its nature. Moreover, I argue that Aristotle not only lacks an account of forgiveness but in fact, that his account of blame is incompatible with forgiveness altogether. (shrink)

I examine all the occasions on which Aquinas uses a particular example, which goes back to Plato's Republic, to shed light on the controversial subject of the immutability of natural law. Aquinas usually transcribes it as depositum gladius non debet restitui furioso, although some variations also occur. We shall first look at the context in which Plato situates this idea, then go on to examine the occasions on which Aquinas draws on it: in the Summa, when discussing the question as (...) to whether the natural law is the same for everyone; in his Commentary on the Nicomachean Ethics, when he explains in what sense natural law may change, and in what sense it remains the same; and finally, where he examines the virtues of gnome and epieikeia, also in the Summa. (shrink)

The Aristotelian Corpus contains two extended treatments of justice as a virtue of character: Magna Moralia i 33 and Nicomachean Ethics Book V (or Eudemian Ethics Book IV). Differences between the two treatments include these: (1) MM denies, but EN V affirms, that natural justice is part of political justice; (2) MM denies, but EN V affirms, that general (or ‘universal’) justice is an other-directed virtue that should concern us in the treatment of justice as a virtue; (3) MM does (...) not discuss the relation between equity (epieikeia) and justice, while EN V affirms that equity and justice do not conflict. Are these differences connected? How are they to be explained? Might they help us to answer questions about (a) the relation of MM to the other two ethical treatises, and (b) the relation of EN V to the EE and to the EN? (shrink)

Poststructural criticisms of classical and neoclassical economic conceptions of human motivation and agency often include rejections of how market exchange is conceived to involve only the desires and rationality of a solitary human agent. While many of these criticisms are illuminating, they also tend not to offer a positive, constructive alternative. In this chapter, I discuss the contributions of Paul Ricoeur's understanding of mutual recognition and how it can be used--albeit perhaps despite Ricoeur's own intention and critical assessment of economics--to (...) retrieve a theory of exchange in which mutuality is possible. My analysis consists of five sections. First, I recapitulate Ricoeur’s criticism of exchange. Second, I examine how the economist Richard Ebeling attempts to read mutuality in exchange through the hermeneutics of Ricoeur and why this attempt fails. Third, I revive Ricoeur’s broader conception of value in relation to care for the other. This allows me, in the fourth section, to correlate Ricoeur’s discussion of ethical value to exchange-value. Finally, I join exchange to mutual recognition via Ricoeur’s discussion of epieikeia. (shrink)

Inhalt: Rechtsbindung - Juristisches Denken - Topik - Rhetorik - Rechtswissenschaft - Jurisprudenz - Kybernetik - Praktische Philosophie - Ethik, Ethos, Logos - Pathos - Politik - Phronesis - Praxis - Kontingenz - Praktischer Syllogismus - Wahrnehmung - Erfahrung - Billigkeit/Epieikeia - Gerechtigkeit.

This dissertation evaluates the efforts of modern philosophers of aesthetics and politics to distinguish judgment from both cognition and volition. To see the rule under which any given particular is to be subsumed as a law fabricated and imposed by either God or reason is to characterize free judgment in terms of sovereignty. This generates the skeptical dilemma of an infinite regress of the legitimacy of the rule's application that can only be avoided by seeing the act of judgment as (...) an act of will. Such a voluntarist account of politics and judgment must in the end deny plurality for identity, and efface the categorical Aristotelian distinction between the public and the private. The rejection of the teleology of publicity is thus tied to the collapse of phronesis back into a Platonic techne that strives to produce society and man in the image of the eidos. ;Three "solutions" to this aporia are considered. The first is Hannah Arendt's appropriation for politics of Kant's aesthetic judgment, which allows for categorical distinctions between the public and the private and between judgment and the observance of rules. This project fails on account of the extreme formalism of that aesthetics. The second reads the third Critique as an allegory of politics. This too fails, as Kant's aesthetic community relies upon the productive legislation of the genius, a figure whose lineage reaches back to the half divine, half bestial figure of Machiavelli's founding prince. The third is a direct return to Aristotle. While his ethical philosophy offers us our best account of phronesis and epieikeia, it does not sufficiently engage the motivations for its own rejection. Hobbes, Locke, and Kant were not so taken with the model of mechanistic science that they simply forgot that in their common lives they regularly made judgments without the implicit or explicit guidance of a rule. The modern is better seen as a Weltanschauung, less a description that might be right or wrong than a desire. The alternative to the aporia of judgment is not found in the aesthetic but in a Wittgensteinian form of philosophical therapy. (shrink)

This paper highlights the relevance of moral authority, and the role that egoistic ethical claims have in waging war. This is done, in view of the just war tradition, by drawing a parallel between the crusades in the 'kingdom of heaven' proclaimed in 1095, and the present Islamic jih d , as well as the Bush administration's declaration of a war on terror. It maintains that the role of self-legitimized leaders is crucial in shaping the order of the jus ad (...) bellum criteria, in both Christian and Muslim societies, and that the indiscriminate usage of just war rhetoric proves to be a formidable weapon. Moral authority is described as a power resource, capable of capsizing the relevance of ethics, subjecting the interpretation of justice to declare war to the self-proclaimed authorities, and moving masses on the grounds of enthusiasm. (shrink)

The prevailing notion of natural law is generally seen to have originated either in Plato or in Aristotle and is then being traced through Thomas Aquinas to modern times. In this narrative, all conceptions of natural law share a common function: they are standard-setting. They (at least partly) determine, legitimise and limit positive law. However, this standard-setting (and mostly: rational) natural law gained a rather late victory over an older, more teleological and oft-forgotten concept of natural law: Aristotle’s physikon dikaion (...) is neither a standard nor a limitation to the nomikon dikaion. Only after and probably thanks to Thomas Aquinas, natural law could be established as an immutable (and rationally discernible) standard of positive law. (shrink)

A reconstruction of the history of a family of words, from ancient Greek and Hebrew to Modern languages, with an overview of one century discussion about justice, the separation of law and politics, and the ethical element in political theory.