EQUITÀ NEL DIRITTO ODIERNO

Abstract

The need for case-specific justice, going beyond the law as a general and abstract norm, deeply penetrates the legal practice, from its origins to the present day. Examples taken from Plato and Aristotle are illustrated in this regard. These could spark an interest in tracing the tension between abstract generalities and concrete details in the theories of justice and in the history of judicial institutions throughout the ages. These include the tensions that emerged during the Enlightenment, as well as those from the period dominated by the doctrine of law as an expression of general will that was therefore just. The work highlights the renewal of this issue, crucial for our vision of the law and our expectations of it in current constitutional state, which in many respects has gone beyond the concept of the law from the Enlightenment à la Montesquieu, Bentham and Beccaria, given the constitutional requirement to focus on the needs of specific cases. Within this revival, a particularly important role is played by the numerous cases in which the laws are declared unconstitutional because of their excessive generality or abstractness, or on the basis of the judiciary’s inability to pass a fair judgement on the case before them. This is a surprising result that has emerged from the principles of equality and adequacy of law, a result that also calls into question the concept of jurisdiction and problematises the suitability of a judicial organisation modelled on an official judge “subject only to the law” in relation to the important, delicate and even dangerous function referred to by Plato as the “arte regia”.