'Aequitas' as Real Law: Sources of the European Legal Tradition
Dozhdev D. V. Aequitas as Real Law: The Sources of the European Legal Tradition, in “The Best in the West”: Educator, Jurist, Arbitrator: Liber Amicorum in Honour of Professor William Butler. Ed. by Erpyleva N. Iu., Gashi-Butler M.E. Wildy, Simmonds & Hill, Publishers, 2014. p. 87-102.
10 Pages Posted: 2 Mar 2015
Date Written: March 1, 2015
Concepts of Justness in Aristotle and Cicero are analysed. Both follow formal approach to Justness, proper to legal science. Looking for model of moral perfection and dignity Cicero appeals to the findings of Quintus Mucius Scaevola (II-I BC), founder of european legal science, who revealed the nature of just in proper application of formal equality (bonum et aequum). For Roman lawyers just person was a person that was following a model of a 'vir bonus' (good man). Abstract qualities of a good man were products of law and at the same time elemenst of legal system. The very conformity to the principles of law makes a participant of legal interaction 'good man'. Abstract notion of 'aequity' (justness) was seen as a source of law. In Byzantine times 'aequity' became a quality of the Emperor, while the just nature of law was substituted by 'justness' of the ruler. Some scholars connect the abstraction of 'aequity' with this new approach and deem Roman law texts corrupted in later times. However, the autenticity of the traditional texts can be proved.
Keywords: European legal tradition, Equity, Justness, Aequitas, Formal Equality, Ius, Lex, aequum ius, Positive Law, Roman Law
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