Aristotle and the Philosophy of Law: Theory, Practice and Justice IUS GENTIUM COMPARATIVE PERSPECTIVES on LAW and JUSTICE
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Aristotle and The Philosophy of Law: Theory, Practice and Justice IUS GENTIUM COMPARATIVE PERSPECTIVES ON LAW AND JUSTICE VOLUME 23 Series Editors Mortimer N.S. Sellers University of Baltimore James Maxeiner University of Baltimore Board of Editors Myroslava Antonovych, Kyiv-Mohyla Academy Nadia de Araújo, Ponti fi cal Catholic University of Rio de Janeiro Jasna Bakšic-Muftic, University of Sarajevo David L. Carey Miller, University of Aberdeen Loussia P. Musse Félix, University of Brasilia Emanuel Gross, University of Haifa James E. Hickey, Jr., Hofstra University Jan Klabbers, University of Helsinki Cláudia Lima Marques, Federal University of Rio Grande do Sul Aniceto Masferrer, University of Valencia Eric Millard, West Paris University Gabriël Moens, Murdoch University Raul C. Pangalangan, University of the Philippines Ricardo Leite Pinto, Lusíada University of Lisbon Mizanur Rahman, University of Dhaka Keita Sato, Chuo University Poonam Saxena, University of Delhi Gerry Simpson, London School of Economics Eduard Somers, University of Ghent Xinqiang Sun, Shandong University Tadeusz Tomaszewski, Warsaw University Jaap de Zwaan, Erasmus University Rotterdam For further volumes: http://www.springer.com/series/7888 Liesbeth Huppes-Cluysenaer Nuno M.M.S. Coelho Editors Aristotle and The Philosophy of Law: Theory, Practice and Justice Editors Liesbeth Huppes-Cluysenaer Nuno M.M.S. Coelho Department of General Jurisprudence Faculdade de Direito de Ribeirão Preto University of Amsterdam University of São Paulo Amsterdam , Netherlands Ribeirão Preto São Paulo, Brazil ISBN 978-94-007-6030-1 ISBN 978-94-007-6031-8 (eBook) DOI 10.1007/978-94-007-6031-8 Springer Dordrecht Heidelberg New York London Library of Congress Control Number: 2013932391 © Springer Science+Business Media Dordrecht 2013 Chapter 1 is published with kind permission of © Lawrence B. Solum 2013. All Rights Reserved. This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, speci fi cally the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on micro fi lms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. Exempted from this legal reservation are brief excerpts in connection with reviews or scholarly analysis or material supplied speci fi cally for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Duplication of this publication or parts thereof is permitted only under the provisions of the Copyright Law of the Publisher’s location, in its current version, and permission for use must always be obtained from Springer. Permissions for use may be obtained through RightsLink at the Copyright Clearance Center. Violations are liable to prosecution under the respective Copyright Law. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a speci fi c statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. While the advice and information in this book are believed to be true and accurate at the date of publication, neither the authors nor the editors nor the publisher can accept any legal responsibility for any errors or omissions that may be made. The publisher makes no warranty, express or implied, with respect to the material contained herein. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) Contents 1 Virtue Jurisprudence: Towards an Aretaic Theory of Law ................ 1 Lawrence B. Solum 2 Reasoning Against a Deterministic Conception of the World............. 33 Liesbeth Huppes-Cluysenaer 3 Law and the Rule of Law and Its Place Relative to Politeia in Aristotle’s Politics ............................................................. 59 Clifford Angell Bates Jr. 4 The Best Form of Government and Civic Friendship in Aristotle’s Political Thought: A Discussion Note ............................. 77 Ki-Won Hong 5 Controversy and Practical Reason in Aristotle .................................... 87 Nuno M. M. S. Coelho 6 Aristotelian Ethics and Aristotelian Rhetoric ...................................... 109 Marcel Becker 7 Is There Any Theory of Value in Aristotle’s Ethics? ........................... 123 António de Castro Caeiro 8 Intellectual Excellences of the Judge ..................................................... 135 Tommi Ralli 9 Justice Kata Nomos and Justice as Epieikeia (Legality and Equity) .............................................................................. 149 Samuli Hurri 10 Legality and Equity in the Rhetoric : The Smooth Transition ............. 163 Miklós Könczöl v vi Contents 11 Legal Rules and Epieikeia in Aristotle: Post-positivism Rediscovered ................................................................. 171 Jesús Vega 12 Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness......................................................... 203 Ekow N. Yankah 13 A Neo-Aristotelian Notion of Reciprocity: About Civic Friendship and (the Troublesome Character of) Right Judicial Decisions ......................................................................... 223 Iris van Domselaar 14 Synallagma as a Paradigm of Exchange: Reciprocity of Contract in Aristotle and Game Theory ........................................... 249 Mariusz Jerzy Golecki 15 The General Principle of Proportionality and Aristotle...................... 265 Eric Engle About the Authors Clifford Angell Bates Jr . is a Professor at the American Studies Center of Warsaw University in Poland since 2004. He specialises in Political Philosophy. In 2003 he published at LSU Press his Aristotle Best Regime: Kingship, Democracy, and the Rule of Law . He has written several articles on Aristotle and is currently working on a second book on Aristotle dealing with the regime typology and its evolution. Marcel Becker (1961) is assistant professor philosophical ethics at the Radboud University Nijmegen. He is specialized at virtue ethics and applied ethics, particu- larly ethics of public administration, business ethics and media ethics. He tries to make fruitful the Aristotelian heritage in each of these areas. Address: M.Becker@ ftr.ru.nl Nuno M.M.S. Coelho (Ph.D. in 2006, Habilitation in 2009) is Professor of Ethics and Philosophy of Law at USP (University of São Paulo) and Head of the Post Graduate Courses in Legal Philosophy in UNIPAC/Juiz de Fora. He published books and articles on Aristotle and Ancient Philosophy of Law, and on Hermeneutics and Legal Methodology. Antonio de Castro Caeiro teaches Ancient and Contemporary Philosophy, Ancient Greek and Latin at the Faculty of Social Sciences and Humanities of the New University of Lisbon. He translated into Portuguese the Nicomachean Ethics of Aristotle and the Pythical Odes of Pindar. He recently translated and commented the Fragmenta Aristotelis collected by Valentin Rose and has been working on a project with many scholars, especially David Sedley, on the stoics. Contacts: acaeiro@mac. com, http://www.antoniodecastrocaeiro.com/ . Eric Engle is a Lehrbeauftragter at the Humbolt Universitaet, Berlin, Juristische Fakultaet. JD St. Louis, DEA Université Paris II (Mention), LL.M., Dr. Jur. Universität Bremen Mariusz Jerzy Golecki : B.C.L. Warsaw (1998), LL.M. Cambridge (2002), Ph.D. Lodz (2004). Associate Professor- Department of Legal Theory and Philosophy of Law, Faculty of Law and Administration, University of Łódź. Visiting Scholar- the vii viii About the Authors Centre for European Legal Studies, the Faculty of Law, University of Cambridge (2008–2009). He specializes in Law and Economics, Jurisprudence and Comparative Law. The author of 2 monographs and about 40 articles. Ki-Won Hong took his doctor’s degree at the University of Aix-Marseille, France, with a dissertation on the political thought of Fr. Hotman, a sixteenth-century Aristotelian. His main interest consists in studying early modern political ideas in relation to classical republicanism. After several years of teaching experiences as assistant professor in Seoul, he is now enlarging his research area as visiting profes- sor at the University of Panthéon-Assas (Paris). Liesbeth Huppes-Cluysenaer specialises in the ontology and method of Law. On behalf of the Law faculty of the University of Amsterdam, she has developed a research website-blog dedicated to the English translation and comparative analysis of the main book by Paul Scholten, who defends an intuitive conception of the legal decision. ( paulscholten.eu ) Samuli Hurri LL.D. works at the Centre of Excellence in Foundations of European Law and Polity at the University of Helsinki, Finland. He is the founder and former editor-in-chief of No Foundations , an open access journal in legal theory and philosophy. Miklós Könczöl is an assistant lecturer at Pázmány Péter Catholic University, Budapest (Hungary) and currently Durham Doctoral Fellow at Durham University (UK). He holds degrees in Latin and Greek, Law, and Legal Theory. His research interests include Greek rhetoric, legal theory, the semiotics of law, and environmen- tal philosophy. His latest publication is an edited volume, Legal and Political Theory in the Post-National Age (Peter Lang, 2011,