La equidad según Ferrajoli y la equidad según Aristótelesuna comparación crítica

Resumo

The purpose of this paper is to elaborate a critical approach to Ferrajoli’s conception of equity. Its author undertakes a critical analysis on the cognitivist conception of jurisdiction to be found in the Italian author, particularly on the role played by equity thereof (as «power of connotation» coming along with the «denotation power», «fact finding power» and «ethical-political disposition power» of the judge) using for this purposes Aristotle’s classical theory on equity. In this comparison, Ferrajoli’s positivist model is confronted with Aristotle’s pragmatic model of rules and with judicial deliberation as practical reasoning, this latter derived from his notion of «prudence» underlying the concept of epieikeia as «correction of the law». It is then that the deficiencies of Ferrajoli’s approach to jurisdiction, based on a conception of the notion of truth following the positivist fact-value dichotomy, are observed. The author argues that Ferrajoli’s thesis on equity as «connotation of what is denoted by the law» and «understanding of the factual circumstances of the case» really tantamount to the classical formalist conception on jurisdiction. Moreover it is argued that holding this understanding of jurisdiction turns Ferrajoli’s positivist constitutionalism inconsistent. For the judicial function, especially in the constitutional rule-of-law state, needs to be considered as inseparable from the notion of truth as practical correction and from the methodical ideal of coherence.