Legal Rules and Epieikeia in Aristotle: Post-positivism Rediscovered

Abstract

This paper addresses the topic of the implications of the Aristotelian concept of epieikeia in the current ius-philosophical debate on the role of rules in the law. The author’s claim is that the Aristotelian concept of equity provides us with arguments to possibly overcome the dilemma between positivist conceptions of the law, on the one side, and antipositivist or non-positivist conceptions of the law, on the other. For this purpose, after (a) discussing the role of rules (nomoi) in the Aristotelian conception and (b) presenting a positivist contemporary theory of rules, particularly, Schauer’s theory, (c) the author elaborates on the opposition between the thesis of the asymmetry of the authority and the Aristotelian thesis of equity according to which adjudicative authorities must correct the law.