Fairness as an Essential Element of Law * IVAN

Among institutions of advanced legal systems, few have been more perplexing than the right to a fair trial. An important reason is its content, especially the relation of the institution to fairness or equity. The purpose of this paper is to provide, by correlating some well known episodes of legal philosophy that are usually kept apart, a new look at fairness of equity as an essential element of law understood as a way of reasoning. To that end the paper is divided in the following three sections: (1) Aristotle's conception of fairness as higher justice and an essential element of law; (2) the modern conception of equity, which relies on Kant's philosophy and assumes that equity is subjective and arbitrary unlike legal justice, which is objective and reasonable; (3) A recent turn in philosophy of law. The brief analysis of selected key episodes of the history of the idea of equity or fairness allows some tentative conclusions. First, contemporary discussion in legal philosophy, most notably contributions of Lon Fuller, John Rawls and Ronald Dworkin, suggest, like Aristotle's practical philosophy, that there are good reasons to understand equity as a way of reasoning that is an essential element of law. Second, equity is a way of reasoning that involves moral insight into a unique constellation of both a characteristically unique detail of a practical situation and the peculiar structure of the whole to which the detail belongs. Third, the holistic nature of equity explains such phenomena as the diversity of rights lumped together under the label the right to a fair trial. What makes a trial fair is precisely a proper balance of a wide variety of rights and duties, which is in principle unique in every single case.