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This implies that the rule is the practical series of all those particular cases that are covered by the justificatory balance among values that the legislator has translated into the courses of action typified in general and abstract statements. The deontic meaning of a rule goes far beyond both the semantic meaning of its formulation and the logical consistence of its iterated applications: it includes an axiological coherence among them.
And this is exactly the rationale of epieikeia: to remove the possible incoherencies or axiological dis- continuities that rules might be generating along the process of their application in social practice. The formal, logical universalization is a procedure for ruling out via negationis immoral maxims and so for obtaining those that are consistent not only logically but also morally. See Wimmer ff. I will leave aside this dimension. See Hamburger 89 ff.
Vega rules out any kind of institutionalized correction of legal rules by their appliers thus, ruling out epieikeia itself. In fact, his institutional design challenges the very distinction between those two kinds of errors. Hence the possible errors are not imputable merely to the logical generality of the very statement, but to this latter with each and every one of its applications. Consequently, all of them necessarily depend on what Schauer calls over- and under-inclusive cases, which can only ex post be identified as such.
It is only from the perspective of each particular case, not from that of the a priori generalization itself, that over- and under-inclusiveness arises. So there is no such rule that could regulate and perfectly justify its own application as if every problematic situation had been taken into consideration beforehand. It is quite clear that, in any event, this is a kind of practical assessment, that is, a prudential one—in the Aristotelian sense.
But when particu- laristic decision-making prevails, the most noteworthy errors will be those in which misguided decision-makers—whether biased, ignorant, incompetent, or simply confused—will make decid- edly non optimal decisions. In attempting to design a decision-making procedure, we assess as best we can the expected frequency and consequences of these two types of errors. Kant , Anhang II, n. Otherwise the Schauerian legislator would merely beg the question.
Maybe here lies the ultimate assumption of all kinds of rule-formalism. Over and under-inclusive cases are those in which the justification is applicable, cases that the rule should have anticipated and thus governed. That is the distinctive feature of practical rules and values, which unlike theoretical such as technical or scientific ones , are essentially others-related pros heteron, EN V. Justice, particularly, emerges out of the mediating operations of individuals involving the good of other individuals. It does not take into account only universal-naturalistic properties of dogs such as biological, physical, etc.
In that case any kind of practical value would be pushed to the back row, if not disappear entirely. Instead, the relevant properties selected by that formulation have to do with human operations, therefore with goods and evils annoyance, safety, etc. It is a value judgment based on them which makes the cases of a guide dog or of disturbances caused by agents or animals other than dogs relevant and which requires reintegrating them to the justified scope of the rule.
Vega autonomy: from the point of view of the common system of substantive values and principles governing their practice, there cannot be a true asymmetry between the lawgiver and the law-applier.
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There is no doubt that legal rules imply the entrenchment of the literal meaning as the right answer to be adopted by appliers. However this is so because and as far as they actually promote the underlying value or the justification of the rule, which in such a way becomes socially generalized. This clearly makes the universality of rules a necessary virtue and at the same time a deficit or insufficiency.
This is how the rule of law works as based on a law of rules. Rather it derives from the axiological coherence of the practical reasoning of the applier to the principles which underlie the previous practical reasoning by the law-maker. So, here there is no trace of any axiological asymmetry at all. For this is the only way for rules not to merely identify and select general, abstract properties28 but also for them to make possible a regular and therefore equal application of them.
This will allow those rules to be the recursive instantiation of the same standards to similar cases. That is, universality is required as a necessary condition for equality, the essential component of justice. Logical universality is necessary; it is not a sufficient condition for equality though. A regularity of practices of application i.
It is then a normative, dependent upon moral-political criteria, equality. On the relations between Plato and Aristotle on this topic, see Michelakis ; Georgiadis ff. If, them, the judge is an inter- mediary, the just is in some way intermediate. See infra n. So, disagreements about distributive justice are disagreements about equality itself: see EN V. Vega those rules. The reason rather lies in the fact that rules, being themselves the outcome of a practice, are constantly and inevitably exceeded by those practices they intend prospectively to govern33—practices which otherwise have themselves no alternative way of being morally and politically governed than by means of rules.
On the other, there is the correlated variability of the second-order adjudicative praxis. Both are anticipated by the legislative one: the former being the substratum that provides the abstract, typified conditions of application of the latter; and this one being the institutional identification of such conditions and the enforcement of the established legal consequences on social practice,34 but eventually requiring it necessarily being redefined all over again in every particular situation in which that application actually instantiates.
The judicial practice, then, consists essentially of retro- spectively restating and determining the practical meaning of each case in the light of the general legislative statement. But this is not only a logical but also a moral-political defectiveness: there are deeper reasons than epistemological complexity behind it. Consequently, the correctness of a rule can only be affirmed a posteriori, in view of the actual course of its particular applications.
Vega error case by case dialectically. Sound legal decisions are not given ex ante by the general formulation enacted by the legislator, but rather they are the result of practical reasoning undertaken case by case. Particular correct applications of the law—and therefore the correctness of the rule as a whole—are necessarily to be deliberated ex post. Sheer formal-institutional reasons are here claimed for the rigidity of rules, but this neglects the fact that the legal institution necessarily requires dealing with exceptions to the rules that are justified by substantive reasons.
The Aristotelian argument is that legislative rules should be defeated by their underlying values or by other higher moral-political justifications within the legal system. There is no justification why the literal application of rules should always be entrenched even if the result thereof is suboptimal. Vega to those reasons and justifications underlying them, but this is actually the way in which political power is institutionally allocated to judges by the legislative author- ity, i. In every single instance of application, that evaluative relationship connecting the formulation of the rule with its underlying justification needs to be renewed by the appliers.
For this is the only way for underlying values to prevail in each singular case against eventual counter-values. A fortiori, this is also true when the rule becomes over- and under- inclusive. This notion intends to rule out any deliberation when applying a rule by presenting it as a mere operation of logical subsumption. However, it is the generalization itself which here becomes dramatically challenged by its very grounding values, thus, its own purported universality being challenged.
Over- and under-inclusiveness raise indeed the problem of the potential irrationality of practical rule-following. The problem is not merely then about whether a singular case shall be formally qualified or not under a particular rule as a logical property of this latter. It is instead about whether rules can exist in practical reasoning at all considering the unavoidable range of cases in which necessary contradictions emerge between their logical universality and the practical universality of those values underlying them. And the crucial point is that this result cannot be guaranteed in advance by an institutional structure out of formal rules alone.
For, from a pragmatic stance, it is clear that this illegitimately conflates the level of the rules with that of values or justifications. The latter can only be turned into rules by being positively specified and categorized in certain actions and other action-related properties that will constitute the generalization itself. Vega Rules i.
The judicial praxis consists then in a constant iterated materialization of that link. So, values without rules are empty and rules without values or principles are blind. If general formulations involve value judgments by the legislators, then their application by the judges cannot be evaluative-detached. Still when the linguistic meaning is clear, it has to be deliberately considered whether the rule is justifiably applicable or not in every particular case, all things considered. Such a deliberation does not only involve those values which underlie each individual rule, and hence which limit the universe of possible relevant reasons, but also the second- and further order justifications underlying the whole legal system.
Hence, the unity of the legal system is essentially of a justificatory nature and not only of an authoritative one. It is the unity imposed by a coherency among princi- ples and values over the simple consistence of the formulations of rules. Only the legislator can intervene to complete the gaps of a law, by means of a law making punishable in the future the type of action in question. This formalist image of rules falls far from an adequate reconstruction of evalua- tive-committed rule-following under the rule of law.
To defer to the authoritative decisions of another presupposes, even when punishments are entailed thus, pru- dential reasons being involved , the argumentative articulation of practical reasoning in its wider sense. Legal praxis is indeed about a complex continuity between practices of interpretation and application of legal formulations, something which necessarily is of a justificatory nature, for it is opened to exceptions and corrections that are not fully foreseeable by the legislator, needing to be determined on every single occasion instead.
Rationality of adjudication requires deliberation on the correct applicability and acceptability of legal rules to every particular case in order to make their logical universality coextensive with their axiological universality. As Beever 35 points out, equity consists of those moral judgments that are required to reconcile legal justice with absolute justice, thus also filling the gap between them.
Therefore, epieikeia is not about a sort of absolute external correction of the law, as traditionally understood by the natural law theories. It is indeed structurally linked to law, for that kind of justice necessarily consists in the application of rules. The exercise of political justice is not possible at all without rules. Still, the rule of law is not equivalent to the law of rules: against positivism, it must be broadened to incorporate the principles of morality that those rules presuppose as grounds.
However, now against iusnaturalism, any interpretation of the epieikeia claiming that it is exhaustively confined in a moral, pre-legal rationality would dismiss the institutional dimen- sion of the law, in which rules represent the essential element.
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For rules make of the law an institution that is characteristically authoritative, composed of officials, procedures and coercion, thus irreducible to moral institutions—required by these instead Miller To overlook this would mean to dissolve the law in morality. Aquinas, In dec. Along these lines, see Trude ff. Justice is no longer just a moral matter, but also a matter of a delib- erative compound by legal authorities of plural and divergent ethical conceptions on virtue in the community.
Given this dialectical plurality, a legal decision- making institution must be found to determine the norms that are to govern the society. These norms, Aristotle insists, must be expressed in the form of a gen- eral logos, that is, in legislation. Neglecting this is a key error in which both iusnaturalism and legal positivism converge.
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Beever The law and hence the rule of law is not conceived as a system of self-referred rules, but as an instrument for the fulfillment of the moral-political substantive values which are intended to be incorporated into the political practice. Those values should be the framework from which to examine legal rules and singular decisions hereinafter. Insofar as they fail to capture those values, legal rules must be corrected in order to govern a state in accordance with its constitution. Here exceptions confirm rather than abolish the rule Von Leyden 96— That is: equity gives rise to new rules that are only legally justifiable as long as they are kept consistently connected to the same values or balances among them that the legislator has established, thus they continue and iterate those values in social practices.
This is a historical, dialectical process except for a divine legislator or a herculean judge. And, of course, for Aristotle it is clear that there are many different argumentative ways to project principles and values contained in the standards of one concrete polit- ical constitution onto the rest of the legal rules throughout the process of their particular application, especially when there is a plurality of decisors. The legal development represents an open deliberative process indeed.
The complex continuity of this process will be at all events a matter of the interplay between legislators and judges by means of practical reason—and all this precisely through some sort of rational procedure of coherent universalization in terms of general guide- lines of action if justice is to be pursued.
The crucial mediating role that legal rules, i. Hence, any axiological asymmetry to be found between legislators and judges is ruled out by incorporating into the legal method the very correction of the method itself. Atienza, and J. Ruiz Manero. Madrid: Iustel. Alexander, L. The deceptive nature of rules. University of Pennsylvania Law Review 4 : — The rule of rules. Morality, rules and the dilemmas of law. Durham: Duke UP.
Alexy, R. A theory of legal argumentation. The theory of rational discourse as theory of legal justification . Adler and N. Oxford: Clarendon. Aquinas, Th. In decem libros Ethicorum Aristotelis ad Nicomachum expositio, ed. Taurini: Marietti. The complete works of Aristotle: The revised Oxford translation, ed.
Princeton: Princeton UP. Nicomachean ethics. Indianapolis: Hackett Publishing Company. Gauthier, and J. Sobre la racionalidad de dictar y seguir reglas. Beever, A.
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Aristotle on equity, law and justice. Legal Theory 10 1 : 33— New York: Suny Press. Brunschwig, J. The rule and the exception: On the Aristotelian theory of equity. In Rationality in Greek thought, ed. Frede and G. Strike, — New York: Oxford UP repr. Burns, T. Aristotle and natural law.
Conklin, W. The invisible origins of legal positivism. A re-reading of a tradition. Dordrecht: Kluwer. Dworkin, R. Taking rights seriously. New York: Oxford University Press. A matter of principle. Oxford: Oxford University Press. Cambridge: Harvard University Press. Justice for hedgehogs. Finnis, J. Natural law and natural rights. Gadamer, H. Truth and method . Trans J. Weinsheimer, and D. London: Continuum. Georgiadis, C. Equitable and equity in Aristotle. In Justice, law and method in Plato and Aristotle, ed.
Panagiotou, — A normative conception of coherence for a discursive theory of legal justification. Ratio Juris 2 2 : — The Sense of Appropriateness: Application discourses in morality and law. Hamburger, M. Morals and law. Hart, H. The concept of law , ed. Bulloch, and J. Oxford: Clarendon Press.
Kant, I. Zum ewigen Frieden .
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In Kants Werke. Lockwood, Th. Ethical justice and political justice. A Journal for Ancient Philosophy 51 1 : 29— MacCormick, N. Legal reasoning and legal theory . New York: Oxford UP. MacDowell, D. The law in classical Athens . Ithaca: Cornell UP. Marcin, R. Epieikeia; equitable lawmaking in the construction of statutes. Connecticut Law Review — In fact, Newton made notes and corrected a mistake in Starkey's original text. On the back of the manuscript, he also wrote down one of his own experiments for distilling lead ore. Though best known for his study of gravity and his laws of motion , Newton also apparently wrote more than a million words of alchemical notes throughout his lifetime, historians have estimated, Voelkel said.
But most of his handwritten manuscripts were sold by his descendants at Sotheby's in London in As a result, many documents were purchased by private collectors.
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Some of those were donated or sold back to public institutions over the years, Voelkel said. But this particular text resurfaced at Sotheby's in New York in December , was offered again at Bonhams in , and finally sold at Bonhams in Pasadena Feb. Now that the CHF has purchased the manuscript, it will be added to The Chymistry of Isaac Newton project, an online repository curated by Indiana University, so it can be shared and studied more widely, Voelkel said.
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Original article on Live Science. Knvul Sheikh is a staff writer for Live Science. Her interests range from the mysteries of the brain to drug interactions, as well as conservation and other science topics. Knvul has lived in the foothills of the Himalayas in Pakistan, and swum in the tropical waters of Singapore. When not planning her next big trip, Knvul enjoys running and experimenting with green smoothies. This 17th century manuscript contains instructions that Newton copied from an American alchemist's writings, as well as descriptions of one of Newton's own experiments.
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