Dēmos · Classical Athenian Democracy · a Stoa Publication
S.C. Todd, selections by Michael de Brauw, edition of March 16, 2003
page 31 of 50
epieikeia · Aristotle says that it is the function of the dikastes (juror/judge) to judge according to dike (“justice”), but that the diaitetes (arbitrator) should make his decision according to epieikeia. It is conventional therefore to translate epieikeia as “equity,” since this is a standard and convenient way to describe “fairness” or “natural justice” as opposed to the strict application of legal rules. There are however certain problems here. “Equity” in English law can mean simply “fairness,” but it is also the name given to the system of law developed originally by the Court of Chancery (the Lord Chancellor’s court), to provide relief in cases where to apply the rules of the common law would have seemed manifestly unfair. “Equity” in this sense is itself a body of rules; it is found only in countries which base their legal system on the common law; and it is clearly not what Aristotle is talking about. It should indeed be noted that Aristotle’s statement of theory receives little acknowledgment in Athenian practice: when a litigant in an extant speech pleads for the application of natural justice in his favour, he characteristically describes this as dike and not as epieikeia.
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