Abstract
This paper addresses the topic of the implications of the Aristotelian concept of epieikeia in the current ius-philosophical debate on the role of rules in the law. The author’s claim is that the Aristotelian concept of equity provides us with arguments to possibly overcome the dilemma between positivist conceptions of the law, on the one side, and antipositivist or non-positivist conceptions of the law, on the other. For this purpose, after (a) discussing the role of rules (nomoi) in the Aristotelian conception and (b) presenting a positivist contemporary theory of rules, particularly, Schauer’s theory, (c) the author elaborates on the opposition between the thesis of the asymmetry of the authority and the Aristotelian thesis of equity according to which adjudicative authorities must correct the law.
Some persons in fact believe that Solon deliberately made the laws indefinite, in order that the final decision might be in the hands of the people. This, however, is not probable, and the reason no doubt was that it is impossible to attain ideal perfection when framing a law in general terms; for we must judge of his intentions, not from the actual results in the present day, but from the rest of his legislation (Const. Ath. 9).
This paper has been developed within the framework of the research project Constitucionalismo y argumentación. (DER2010-20132) held by the Spanish Ministry of Science and Innovation. I am most grateful to Jenny Porter and Victoria Roca for their work of language revision and correction.
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Notes
- 1.
See Aguiló-Atienza-Ruiz Manero (2007: 16 ff.).
- 2.
Unless otherwise indicated, all the translations are taken from the revised Oxford edition of Aristotle’s works.
- 3.
I have modified the Oxford’s translation: “the principle of order in political society” and “the determination of what is just.”
- 4.
I have modified the Oxford’s translation: “the lawful and the equal”.
- 5.
“Of things just and lawful [dikaion kai nomimon] each is related as the universal to its particulars; for the things that are done are many, but of them each is one, since it is universal.” (EN V.7.1135a5-8). Although it is common to use “generality” to refer to the general or generic character of rules, in this paper I choose to use “universality.” The first reason for this preference lies in the original Aristotelian katholou, whose epistemological meaning indicates a truly universal knowledge. The second, as my argument will hopefully make clear, is that the “generality” of rules pertaining to the practical domain is a semantic or logical property whereas their “universality” is a pragmatic or axiological one, thus belonging to a deeper, justificatory level of rationality. See MacCormick (2003: 78, 97 ff.).
- 6.
For instance this celebrated one: “Now, it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges” (Rhet. I.1.1354a32).
- 7.
- 8.
“The goodness or badness, justice or injustice, of laws varies of necessity with the constitutions of states” (Pol. III.11. 1282b8-10).
- 9.
Laws are “the “works” of the political art”, and “in their enactments on all subjects [peri apantôn]” they affect all men and aim at “common interest of all” (EN VI.8.1141b25; X.9.1181b1).
- 10.
- 11.
Schauer (1991: 23). All numbers with no further reference henceforward indicate pages in this work.
- 12.
Schauer’s example is that of a rule such as “no dogs allowed” appearing in a restaurant. The justification of this rule—preventing client annoyance—guides the rule-maker in his act of generalizing, from the particular ways of behaviour characteristic of dogs and which may disrupt clients in a restaurant (barking, running, jumping, eating), to the general category “dogs” itself. This category or property (“dogness”) is selected in light of its causal relevancy to the presence of annoying disturbances, and thus the prohibition of dogs as a type actually contributes to the increasing of the likelihood of achieving the desired, opposite goal (in this case the avoiding of an evil), which is the rule’s justification, viz. preventing annoyances in the restaurant (28–29).
- 13.
We find the same idea in Raz’s conception of mandatory rules as “exclusionary rules” (Raz 1990: 58 ff.).
- 14.
“A decision procedure that aims to optimize in every case may be self-defeating, producing worse results in the aggregate than a decision procedure with more modest ambitions” (101–102).
- 15.
This endorsement is, however, presented in descriptive terms: “[P]resumptive positivism is a descriptive claim about the status of a set of pedigreed norms within the universe of reasons for decision employed by the decision-makers within some legal system, […] [it] may be the most accurate picture of the place of rules within many modern legal systems” (203, 206).
- 16.
“With respect to any decision-making agent, a rule exists for that agent […] only when an instantiation provides a reason for action independent of that supplied by the instantiation’s background justification” (113).
- 17.
EN I.2.1094b5-7 (I have modified the Oxford’s translation: “as to what we are to do and what we are to abstain from”). See Pol. III.15.1286a15-16; Rhet. I.1.1354a22.
- 18.
According to Aristotle, “the laws are, and ought to be, framed with a view to the constitution, and not the constitution to the laws.” (Pol. IV.1289a13-15) Legislative activity is of an interpretive nature and it is developed within the constitutional framework, therefore there can be legal rules that are contrary to the regime’s foundation (II.9.1269a32.).
- 19.
Legal rules have a justificatory, not only a genetic connection to substantive moral values, and this provides them with some kind of universal dimension (“everywhere the same force”), as well as exposing them to the possibility of moral criticisms. That is why justice in its general sense is a synonym for virtue, since “in justice all the virtues are contained” (EN V.1.1129b30; see 2.1130b18ff.).
- 20.
As it is well known, the best philosophical expression of this idea in the history of philosophy is Kant’s categorical imperative, which operates by being “constructively” applied to material moral maxims of action. The formal, logical universalization is a procedure for ruling out via negationis immoral maxims and so for obtaining those that are consistent not only logically but also morally. In this sense, it gives rise to a “teleological”, viz. practical, not purely “deontological” ethics. See Wimmer (1980: 202 ff.); Schnoor (1989: 78 ff.). Let us remember too, en passant, that the categorical imperative is an a priori but synthetic judgment: that is, the empirical product of a “pure practical reason” which causes action in an Aristotelian manner.
- 21.
- 22.
“When rule-based decision-making is in place, the most noteworthy error is the failure on some number of occasions to make the best or optimal decision in the particular case. But when particularistic decision-making prevails, the most noteworthy errors will be those in which misguided decision-makers—whether biased, ignorant, incompetent, or simply confused—will make decidedly non optimal decisions. In attempting to design a decision-making procedure, we assess as best we can the expected frequency and consequences of these two types of errors. When the result of that assessment is a preference for rules, there is implicit in this preference a judgment that the errors that might be made by misguided decision-makers are more serious or more likely that the rule-based errors that come from a built-in failure to reach the very best decision in every case” (Schauer 1991: 154).
- 23.
See Von Leyden (1985): 96. A classic example of such “perfect rules” are those who Kant called “universal laws” (universale Gesetze), which are valid in every case (allgemein gelten), “as it seems to be required by the concept of a law [Begriff eines Gesetzes].” These universal laws sharply oppose “merely general laws” (bloss generale Gesetze), which are valid only for the most part (im allgemeinen) and where exceptions are added “by groping around particular cases as they come up” (durch Herumtappen unter vorkommenden Fällen). Kant (1795 [1968], Anhang II, n.2).
- 24.
“Factual predicates will therefore in some cases turn on features of the case that do not serve the rule’s justification, and in others fail to recognize features of the case whose recognition would serve the rule’s justification” (Schauer 1991: 33, original emphasis).
- 25.
So, to take up again Schauer’s example, the term “dog” appearing in the rule’s formulation “no dogs allowed” is not exclusively a descriptive, but also an evaluative one. It does not take into account only universal-naturalistic properties of dogs (such as biological, physical, etc. ones). In that case any kind of practical value would be pushed to the back row, if not disappear entirely. Instead, the relevant properties selected by that formulation have to do with human operations, therefore with goods and evils (annoyance, safety, etc.). It is a value judgment based on them which makes the cases of a guide dog or of disturbances caused by agents or animals other than dogs relevant and which requires reintegrating them to the justified scope of the rule.
- 26.
See supra n. 6 and infra n. 34.
- 27.
In the moral, political and legal domains—the realm of politikē—“we must be content […] in speaking about things which are only for the most part true and with premises of the same kind to reach conclusions that are no better.” (EN I.2.1094b20-23) Unlike in nature, now the standard hôs epi to poly has a normative dimension. As it is known, here lies the difference with the Platonic legislator and his “kingly science.” See Brunschwig (2002: 126 ff.) On the relations between Plato and Aristotle on this topic, see Michelakis (1953); Georgiadis (1987: 159 ff.).
- 28.
Aristotle refers to the good legislator as a competent technikos and as someone who has studied his craft theoretically (theorêtikos); as Bodéüs (1993: 58) points out, it is “in any case, one who must have attained general knowledge.” See EN X.9.1180b20ff.
- 29.
“That is why parties to a dispute resort to a judge, and an appeal to a judge is an appeal to the just; for the judge is intended to be a sort of living embodiment of the just. Moreover, they seek the judge as an intermediary, and in some cities they actually call a judge a “mediator”, assuming that if they are awarded an intermediate amount, the award will be just. If, them, the judge is an intermediary, the just is in some way intermediate.” (EN V.4.1132a20-25; Irwin’s translation). It is, then, due to the fact that it consists of the application of pre-existent general rules that judicial justice “treats people as equals.” (1132a2-6)
- 30.
Due to his neglecting this axiological dimension, Schauer (1991: 135 ff.) denies any connection between the generality of rules and justice simpliciter: “Thus there is nothing essentially just about rule-based decision-making.” (id., 137) This is however inconsistent with his defense of the “asymmetry of authority” and ultimately with his entire vindication of a rule-based “presumptive positivism”, according to which rules may result overridden by “particularly severe” substantive reasons. See infra n. 42.
- 31.
In Leyden’s words (1985: 13), equality means “a process of equalisation between people who are different.”
- 32.
Pol. IV.4.1291b34-38; see V.1.1301a28-35; VI.2.1317b2-3. So, disagreements about distributive justice are disagreements about equality itself: see EN V.3.1131a27-29, Pol. III.12.1282b18-23.
- 33.
Compare with Hart (1994:128–129) on the “indeterminacy of purposes” as a nuclear dimension of the “open texture” of rules.
- 34.
“In general, then, the judge should, we say, be allowed to decide as few things as possible. But questions as to whether something has happened or has not happened, will be or will not be, is or is not, must of necessity be left to the judge, since the lawgiver cannot foresee [proidein] them”, Rhet. I.1354b11-16; see also 1354a29-30.
- 35.
Like in the case of decrees, the epistemological limits (“In fact this is the reason why all things are not determined by law, viz. that about some things it is impossible to lay down a law, so that a decree is needed”, EN V.10.1137b28-29) come together with the moral-political ones (“no decree can be universal”, Pol. IV.4.1292a37).
- 36.
“A decision procedure that aims to optimize in every case may be self-defeating, producing worse results in the aggregate than a decision procedure with more modest ambitions” (Schauer 1991: 101–102).
- 37.
“Hence we infer that sometimes and in certain cases laws should be changed; but when we look at the matter from another point of view, great caution would seem to be required. For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience” (Pol. II.8.1269a10-18).
- 38.
Schauer (1991: 131 ff.) “The rule-maker adds sanctions for violating the rule (and thus furnishes prudential reasons for following the rule) even under circumstances in which the subject perceives it to be best, all things considered, to violate it, and even when it is best, all things considered, to violate it, for otherwise, there would be little reason for the subject to obey in those cases in which the subject believes, erroneously, that this is a case in which violation is justified.” (ibid., 132, orig. emph.) See for that criticism Alexander/Sherwin (1994: 1199–1200); Bayón (1996: 156–157).
- 39.
- 40.
- 41.
Schauer himself is otherwise well aware of this in several parts of his book, prior to his vindication of a presumptive, rule-based positivism. Take, for instance, the following passages: rules are more of a “relationship” between “a behaviour within the extension of a rule-formulation and the behaviour that takes place” than logical “entities” or “properties.” (1991: 64, 112); rules have to do with “the behaviour the rule seeks to affect”, since “we commonly distinguish different rules according to what they do, rather than how they say it.” (id., 63, emphasis added); “the process of taking a rule to be applicable depends not only on the rule’s own designation of applicability, even presupposing internal validity, but of something external to that rule and to the rule system of which it is a part”; “Were all the relevant rule-appliers within a decision-making environment to treat the rules within that environment as overridable, then those rules would be overridable, even though the rules as canonically inscribed incorporated no provisions for override.” So concludes Schauer: “something about a rule and not the rule itself determines not only what weight the rule will have, but whether it is even a rule at all.” (Schauer 1991: 126, 128, or. emph.) The reference of that “something” must clearly be the rule’s underlying values—or indeed any other relevant ones. As far as Schauer’s “presumptive positivism” eventually recognizes that legal rules can be defeated by “particularly strong” substantive reasons, it departs from a plain rule-formalism. However, there is hardly any distance between this positivism and what he calls “rule-sensitive particularism”, as some commentators have pointed out Bayón (1996: 160–161); Alexander/Sherwin (2001: 68 ff.).
- 42.
- 43.
See Michelakis (1953: 35). Brunschwig (2002) holds a contrary opinion: “The reparation of apparent gaps in the law could not be entrusted to the judge, at least in a state ruled by law where no one can be convicted except by references to a law enacted and in force at the moment when he was acting. Only the legislator can intervene to complete the gaps of a law, by means of a law making punishable in the future the type of action in question.” It is clear, however, that in this case it is not about rules alone since the principle of legality in criminal law is here at stake too. This principle precisely implies the exclusion of any “gap” at the level of rules out of moral-political reasons (the protection of individual freedom and autonomy). Brunschwig’s conception of the law is positivist, for legal decisions are coextensive to the limits of legal formulations: ‘strictly speaking, the law does not manifest “gaps” but “deficiencies” in the etymological sense of the world, i.e. it “falls short” […] Discrimination of cases where the law speaks and where it is silent as such would depend on neither equity nor justice: it would not be a question of ethical virtue, but only a technical question of reading and knowing the legal code.” (Brunschwig 2002: 138–139) See the following note.
- 44.
Brunschwig finds an “internal duality” in Aristotle’s appeal to “the legislator’s intention”: “The judge says (a) “what the legislator would have said if he had been there”, and (b) “what he would have put in his law, had he known of the case in question.” […] In case (a) the judge imagines himself in the shoes of the legislator, who would say what must be done in that case, that is, what he would himself do as judge; whereas in case (b) the judge simply puts himself in the shoes of a legislator who would write a supplement to his own law, taking its generality down a notch, but keeping to his role as legislator, and leaving it up to the judge to apply the law which he has revised himself.” (Brunschwig 2002: 152, or. emph.) In this author’s opinion—erroneous in my view—, in case (a) the judge’s decision is strictly “singular”, “not covered by any general law”, and in case (b) the judge would apply an “imaginary law” that does not result “in a real law, integrated into the legislative code.” (id., 152–153) As already stated, such a reading is fully dependent on a positivist, rule-formalist conception of the law, which identifies its limits with the limits of its rules. See Zahnd’s criticisms on the traditional Anglo-American conception of equity as a gap-filling device in which legal positivism and natural law converge (1996: 268 ff., 291 ff.): “The proper role of equity is not simply to fill gaps in the law. Instead, equity consists primarily in a judge’s exercise of practical intelligence to conform universal laws to particular situations” (280).
- 45.
“When rules are followed, especially in those cases in which the act of rule-following appears to the rule-follower to be within the area of under- or over-inclusiveness, the rule-follower can be characterized as simply deferring to the decision-making capacities of another” (Schauer 1991: 161–162).
- 46.
EN VI.8.1141b28-29 (Bodéüs’s translation). See Pol. VII.3.1325b21-23.
- 47.
Equity as something referring us to “natural justice” or “natural law” was the classical Thomist interpretation: “What is equitable is better than what is legally just but is contained under the naturally just”, Th. Aquinas, In dec. Eth., V, 16, n. 1081. Along these lines, see Trude (1955: 124 ff.); Gauthier/Jolif (2002: II-1, 431–432); Hamburger (1971: 100); Leyden (1985: 84); Gadamer (2004: 351 ff.); against, see Brunschwig (2002: 141 ff.); Yack (1990: 227–228).
- 48.
- 49.
The “common unwritten laws” are to be interpreted as universal values not in an aprioristic ontological sense but rather in the sense of those values “which appear to be universally recognized” [homologeisthai dokei], that is, around which there is an ex post consensus in every positive legal system (which in essence are always changeable, that is, historical). So, they are universally just: they have “everywhere the same force [dynamin].” (EN V.7.1134b18) It is only under this light that they appear to be unchangeable, and it is then that Aristotle equates their character with epieikeia’s: what is equitable “is ever constant and never changes” (Rhet. I.15.1375a30).
- 50.
Thus the sense of the already mentioned definition of nomikon dikaion: “that which is originally indifferent, but when it has been laid down is not indifferent” (EN V.7.1134b20-22).
- 51.
See Pol.III.15.1286a15-16; Rhet. I.1.1354a22. Beever (2004: 43).
- 52.
As said before, that is the ultimate reason why the universal, unqualified sense of justice (haplôs dikaion) is closely tied to “virtue taken as a whole [hôlen aretê]” (see 1130b18-22), for it presupposes the legal institution as the promoting device of all the ethical virtues, now in the political sphere.
- 53.
See, e.g., Finnis (1980: 281 ff.).
- 54.
- 55.
“For an arbitrator goes by the equity of a case, a judge by the law.” (Rhet. I.13.1374b23) In Beever’s words: “Aristotle’s claim is only that judges may attempt to realize the intent of the legislator, given that that intent will not and cannot be captured in the form that legislation must take. This, then, is far from the view that equity is justice’s rebellion against law” (2004: 45).
- 56.
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Vega, J. (2013). Legal Rules and Epieikeia in Aristotle: Post-positivism Rediscovered. In: Huppes-Cluysenaer, L., Coelho, N. (eds) Aristotle and The Philosophy of Law: Theory, Practice and Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 23. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6031-8_11
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