ABSTRACT Scholars have understood Aristotle’s theory of equity in two different ways. On the one hand, some claim that equity is an extra-normative criterion, that is, it goes beyond the law and reaches a supra-legal level identified with a metaphysical order of natural justice. On the other hand, some hold that equity is intra-normative, that is, the judge rectifes legal justice without going beyond its limits. Considering this second point of view and by using a methodology that combines legal philosophy (...) and some of the main theories about emotions in ancient Greece, this paper aims to demonstrate that equitable judges should not have broad discretion according to Aristotle’s thought. To hold that claim, I will mainly address the role of emotions in the formation of judgment and the power they have to endanger the possibility of giving just and rational judicial decisions. (shrink)

ABSTRACT Aristotle says in the Rhetoric that leading judges into passions is like warping a rule or kanon before using it. Rather than seeing this as an exclusion of emotion from rhetoric, I argue that the ability for the pathe to bend judgment has its appropriate use in achieving equity. The pathe are themselves a kanon, resembling the soft, leaden rule used by Lesbian masons, referred to in his discussion of equity in the Nicomachean Ethics. In problematic cases, the rigidity (...) of law requires the correction of a judge's pathetic capacity. I then read Lysias's Against Simon, a speech given under strict relevancy requirements, to show how the pathe are used in the narration of the accused party in seeking an equitable judgment. I conclude with how such a view may inform contemporary rhetorical inquiry on the emotions. (shrink)

The paper discusses the nature and functioning of argumentum ad misericordiam, a well-known but less theorised type of argument. A monograph by D. Walton (1997) offers an overview of definitions of misericordia (which he eventually translates as ‘pity’), as well as the careful analysis of several cases. Appeals to pity, Walton concludes, are not necessarily fallacious. This view seems to be supported and further refined by the critical remarks of H. V. Hansen (2000), as well as the recent work of (...) R. H. Kimball (2001, 2004) and A. Aberdein (2016) focusing on the virtue ethical aspects of such arguments. There is, on this account, a difference between ad misericordiam arguments and fallacies, even though the former may be fallacious in some cases. In this paper I argue for a narrower concept of ad misericordiam, as distinguished from the more generic class of appeals to pity, limiting it to cases in which someone asks for the non-application of a certain rule, clearly relevant to their case, with reference to some (unfavourable) circumstance, which is, however, irrelevant for the application of the rule. (shrink)