V. The Interpretation of Values
1. Hermeneutic equity
The concept of Billigkeit (equity), frequently used in the philosophical discourse of the eighteenth century, is a translation of the Greek term epieikeia, from Aristotle’s Nicomachean Ethics, and it generally represents a tempering of the legal provisions in positive law. As well as philosophers, jurists from around the world have always noted the fact that the law rigidly applied turns into its opposite. The strict application of a general law to a particular case often means, not justice, but injustice. Die Billigkeit has precisely the role of preventing such a situation, which is so often encountered that Immanuel Kant evoked the following dictum of equity: “the most rigorous right is the greatest injustice”.195 Next, Kant said that “this evil cannot be remedied on the path of right, although it refers to a legal claim, as it belongs only to the court of conscience (Gewissensgericht)”.196
Legal or modern philosophical theories have taken from Aristotle the idea that equity is an addition to or correction of positive law, emphasizing that it belongs exclusively to the court of conscience, as Kant synthesized these theories of juridical interpretation. It is about the freedom of the interpreter to use it for right or wrong. The intervention of the judge who interprets and applies the law must not be arbitrary, said Aristotle, but must bring to the law the amendment that the legislator would bring if he were present.
You are not authenticated to view the full text of this chapter or article.
This site requires a subscription or purchase to access the full text of books or journals.
Do you have any questions? Contact us.Or login to access all content.