Aristotelian Equity in the Modern Legal System Open Access

Madeja, Davis (Spring 2020)

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The purpose of my thesis is to study and analyze Aristotle's conception of equity and to argue that it is a concept useful for contemporary legal thinking. To this aim, I look at the relevant Aristotelian texts, historical reports of the application of equity in the American legal system, and contemporary discussions about the value of equity in legal debates.

My argument is developed throughout three chapters. First, looking at Aristotle's work, I develop a notion of equity that goes beyond equity as leniency, as various interpretations have defended. Instead, I argue that a proper sense of equity must include both cases of leniency and cases of stricter judgement.

Second, I discuss how considerations about equity as a potential virtue in legal thinking impact our understanding of the judge. Concretely, I consider which emotions play a role in the formation of equity judges and present a case for the judge that is not completely dispassionate.

In the final chapter, I examine the purpose equity serves in our legal system. I discuss the historical reasons for the history of equity in our legal system, the problem it aims to solve, and the difficulties its application presented and might potentially bring about. To conclude, I use this material to argue that equity understood in an Aristotelian way is beneficial to contemporary legal thinking.

Table of Contents

Introduction... 1

Chapter I: What is Equity?... 7

1.1 Aristotle's Conception of Equity... 7

1.2 Nussbaum "Mercy Model" of Equity... 12

1.3 Phillips-Garrett "Excuse Model" of Equity... 15

1.4 A Critique and Expansion of Equity as Excuse... 17

Chapter II: The Equitable Judge... 19

2.1 How Does Equity Impact Our Understanding of the Judge?... 19

2.2 Forgiveness... 20

2.3 Excuse... 23

2.4 Anger... 25

2.5 Nemesis... 27

2.6 Conclusion... 29

Chapter III: The Application of Equity... 32

3.1 A Brief History of Equity in the Law... 32

3.2 The Problem of Equity... 35

3.3 The Necessity of Equity... 37

3.4 Equity as a Solution to the Problem of Opportunism... 38

Conclusion... 42

Bibliography... 45

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