Academic journal article Antichthon

Was the Athenian Gnome Dikaiotate a Principle of Equity?

Academic journal article Antichthon

Was the Athenian Gnome Dikaiotate a Principle of Equity?

Article excerpt

ProQuest: ... denotes formulae omitted

Modem scholars have expressed divergent views on the role played in Athenian law courts by (....), 'the most just opinion, ' which the dikasts swore to observe in the heliastic oath. The most common view is that this embodied a principle of equity under which the precise letter of the law could be overridden. Hirzel and Vinogradoff are the leading advocates of this view.1 A variant has been proposed by Jones and Plescia, whereby this was not the intention of the oath, but it was used by speech-writers and accepted by the jury-courts in this fashion.2

A minority view is advanced by Meyer-Laurin, Wolff and Meinecke, that 'the most just opinion' was only a subsidiary means of decision, applied only when the law gave no guidance on a particular point.3 Biscardi proposes a middle way, in that 'most just opinion did not override the letter of the law but was used as a principle of equity in the interpretation and formulation of the laws.'4

The majority opinion is based on Aristotle's statement in Rhetoric I 1375a27, where 'the best opinion', (....), is to be advanced when the written laws are against your case, since (....), equity, is unchanging, unlike the written laws. Aristotle quotes Sophocles' Antigone as an example of this. Vinogradoff argues that this represents the principles of jurisprudence used by practical lawyers in Aristotle's time.5

Aristotle has discussed equity at some length earlier in the Rhetoric and in the Nicomachean Ethics. At Rhetoric I I373b4, he says that the unwritten law is superior to the written law and that the written law is common and obvious to all mankind. He gives three examples:- once again, Sophocles' Antigone, saying that it is just to bury Polyneikes; Empedocles saying that it is unjust to kill any being with a soul (which would eliminate any case of justifiable homicide) and Alcidamas in the Messeniaka declaring that god made all men free. This last example shows up a major problem of Aristotle's theory of equity. What was obvious to Alcidamas was not obvious to Aristotle himself in Politics 1252b7, when he declared that barbarians were slaves by nature. The abstract principles of justice are not, in fact, selfevident.

At Rhetoric I 1 374a26, he says that equity must be used when the laws are deficient, either because the lawgiver omitted some matter, or else because he was unable to give a sufficient definition,6 as in what is meant by wounding with iron. It should be noted that Aristotle does not make his case clear and Cope, in explaining it turns to a roughly similar case in Quntilian.7

Aristotle also discusses equity in the Nicomachean Ethics. It is not identical with justice, nor something completely different from it. At V 1131a10, he defines justice as equality ((....)) and injustice as inequality. Further on, at V 1137b10, using a different term for equity ((....)), he says that equity is justice, not according to the law, but as a corrector of the law, since the law deals with things as a whole, not with individual cases.8 Through equity the judge should conect omissions in the law, in the same way as the lawgiver would have done had he known about the case.9 Aristotle clearly had a concept of equity, but he does not provide any guidance on how it should be applied. He assumes that all people have an innate sense of justice which will automatically provide them with the same answers.

Earlier Greek thinkers also believed that there were self-evident principles of justice, which were obvious to everyone. Heraclitus (Bl 14) says that all human law is nourished by a divine law. Plato Protagoras 322B-D) attributes to Protagoras the view that Zeus had sent Hermes to give mankind the understanding of justice ((....)), in order to prevent the extinction of the human race, and Hermes had given it to all men alike. But, as we have seen, there was no agreement on some of these principles of justice, so it would be difficult to apply them in determining what was a just verdict. …

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