Justiția și echitatea sunt conectate prin intermediul proporționalității

5 august 2017
494 citiri

In exploring the ethical links between self and other, the question of justice and that of its relation to equity loom particularly large. Justice and equity are linked through proportionality, which requires that equals be treated equally and unequals unequally to the actual extent that they are unequal. Proportionality, moreover, also requires that the legal universe be apportioned among the realm of just, generally applicable law and that of equitable exceptions to such laws. It is far from obvious how the universal and the singular, law and equity, and generally applicable law and its exceptions can be meaningfully reconciled. The work that emerges as most promising in that respect is a millennial classic that has not lost any of its power or allure, book five of Aristotle’s Nichomachean Ethics. This pillar of western philosophy has had a major influence in molding my conception of justice and equity, much as it has for untold numbers of others through the ages.
While the formal structure laid out by Aristotle seems unassailable, determining who is equally or unequally situated with whom under different sets of circumstance is vexing and often controversial. Because of this, I felt that Aristotle’s analysis needed to be complemented, and the one work that I read as both complementing and contradicting Aristotle and that has equally contributed to my ideas on the subject is Jacques Derrida’s „Force of Law: The Mystical Foundation of Authority” in Deconstruction and the Possibility of Justice.
Derrida complements Aristotle but also turns the latter’s theory on its head, by asserting that, to account fully for the singularity of the other and the universality of the just, justice must, in each case, require the simultaneous application of a universal rule and of its exception. This is, of course, impossible; however, the logic behind it suggests a heuristic counterfactual of great potential. Justice, as such, can never be achieved, but it can and must be constantly better approximated. (s.n. – M.M.-B.)

Michel Rosenfeld
(10 x 10, ICON, vol. 10, nr. 3, 2012, la p. 806)

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