| The word "epieikeia" had a rich connotation in ancient Greece,meaning fairness,reasonableness,justice and moderation,and was widely used in many fields such as philosophy and medicine.Aristotle was the first person to systematically expound the idea of epieikeia,and he systematically elaborated and explained epieikeia on the basis of the ethics of justice.He believed that epieikeia is the complement and correction of justice,which has two basic meanings in the legal field: first,the pursuit of fairness and justice in accordance with the principle of proportionality;second,When there is injustice in the application of the law,judges will use their rich trial experience and personal wisdom to weigh and choose the legal provisions by applying the principle of appropriateness in individual cases to reach a substantive and reasonable judgment.The background of Aristotle’s "epieikeia" legal thought includes judicial practice and theoretical basis.Due to the judicial practice in the "semi-autonomous" state of ancient Greece,the birth and development of rhetoric and epieikeia were promoted,which provided the possibility for the application of Aristotle’s epiieikeia legal thought.In terms of theoretical basis,in order to refute To refute the view of the sophists,Aristotle inherited and developed the theoretical basis of his teacher Plato,arguing that no system of positive law is absolutely perfect.The cognition of a fact proposes the remedy of "equilibrium" and "consideration",namely the principle of "epieikeia".In addition,the principle of moderation in ancient Greek medicine was also absorbed by Aristotle and became the core of Aristotle’s epieikeia legal thought.According to Aristotle,justice is divided into natural justice and legal justice.Legal justice is a kind of conventional justice,which is inherently flawed by its vagueness and generality,and always deviates in its specific application.Therefore,there is a need to introduce the concept of epieikeia in judicial practice to supplement and correct legal justice.The essence of epieikeia is to achieve justice in a moderate manner,thus regulating and supplementing legal justice,which is an embodiment of the virtue of pursuing moderation.Aristotle believed that the core of epieikeia lies in its principle of moderation.Moderation is the middle between two evils,namely,excess and deficiency.Justice,like other virtues,is the pursuit of the quality of moderation,and any excess is inappropriate.The "arithmetic proportion" of the principle of proportionality is used in the correction of justice,and the balance between the "gain" and "loss" of both parties.So how does epieikeia actually work? First of all,judges need to combine epieikeia with rhetoric,use rhetoric as a means,and take epieikeia as the pursuit of result orientation,achieve proportional balance in each specific case,and pursue moderate moral goodness.Secondly,in the judicial aspect,the pursuit of moderation depends on the specific choice and discrimination of practical wisdom.The trial of epieikeia requires a wise and prudent judge with a good understanding,discernment and judgment of specific legal situations in practice.Finally,in terms of law-abiding,the realization of epieikeia also depends on the virtues of civic empathy and fraternity.With understanding and friendship,both parties will voluntarily give up part of their due compensation rights,making it possible for epieikeia to break through the law.Aristotle’s ethics of justice and epieikeia are profound and profound,and their ideological core continues to this day.Taking the time line,jurists in the Roman period accepted the concept of epieikeia from Greece through the school of rhetoric and used it as a supplement to the early Roman legal formalism;the inheritance and development of the epieikeia concept in the Middle Ages were mainly reflected in the classical writings of Aquinas and the interpretive theory of the Glossators;the epieikeia concept was also significant to the development of English equity law.St.Germain,Plowden and others contributed to the transformation of English equity from the principle of conscience to the principle of equity through the application of the epieikeia concept.To sum up,the essence of Aristotle’s idea of epieikeia is that in judicial practice,the magistrate,by applying the principle of proportionality,breaks through the inherent defects of the law,thus realizing the virtue of justice in moderation and restoring the proportional balance between the "gains" and "losses" of the parties. |
