EQUIDAD, ARBITRAJE Y AMISTAD EN LA TEORÍA DE LA JUSTICIA DE ARISTÓTELES

Abstract

In Nicomachean Ethics Book V.10, Aristotle says that the law (nomos) regulates cases in a general way and the judges (dikastai) have to deal with particular situations, but, when the law does not regulate properly the case, they must rectify it to reach a just decision. This is the structure of equity (epieikeia), which he characterizes as “a rectification of legal justice” (1137b12-13). However, in Rhetoric (1374b20-22), the philosopher states that the equitable person prefers to submit the conflict to arbitration rather than to court. In addition, he says that the judge looks at the law, but the arbitrator sees what is equitable, and for this reason arbitration has been invented.

This paper aims to elucidate the reason why Aristotle believes that arbitration is more equitable. By using a methodology that combines a historical and philosophical approach, we have tried to show that the differentia specifica of equity in arbitration, as well as its distinction from judicial equity, consists in its capacity to promote friendship (philia).