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Equality Versus Efficiency, Aristotle’s Foundation of Legal Theory

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In Aristotle’s writing, Nicomachean Ethics, he distinguished the differences between two certain characterizations of “communicative justice.” This distinction, intertwined with his principal theory of equality and what is “just” in exchange, it is safe to say that what is modernly acknowledged as private law was Aristotle’s own discovery.

In “The Moral Foundations of Private Law” James Gordley aims to show just how the concept modernly known as private law remains founded in concepts conceived by “older tradition” than by “preference Satisfaction and economic efficiency.” Gordley begins this argument with explaining distributive and commutative justice as dived by Thomas Aquinas, who was heavily influenced by Aristotle. “Writers in the Aristotelian tradition conceive of distributive justice as ensuring that each person has a fair share of wealth. By wealth they meant roughly what we would call purchasing power.” In contrast the goal of commutative justice is to “preserve each person’s share” This idea calls for a foundation of fairness. These principals that deal with the distribution of resources intertwine with each other. A nation that is mindful of the fair distribution of wealth will also want to preserve the distribution it has achieved or as Gordley puts it, “Commutative justice matters because distributive justice matters.”

Following Aristotle’s school of thought, every individual should receive what might be thought of as purchasing power, which is in direct proportion to his or her merit. Aristotle and Aquinas both disputed Plato’s idea to abolish private property. “Do so, Aristotle said, and there will be endless quarrels, and people will have no incentive to work or take care of property.” This calls attention to the lack of equitable fairness in the distributive justice model.

The difficultly with the concepts of “distributive justice” and “commutative justice” do not lie within the virtue known as righteousness but from the virtue of equality or “equitable fairness.” Aristotle believed that someone who acted un-justly, acts contrary to moral principles, and therefore, consequently lacks virtue is not necessarily an unjust individual within the criteria of equality. “For everything unequal is unlawful, but not everything unlawful is unequal” To Aristotle the idea of Equality lays the foundation for “legal justice” for which rules and laws either authorize or punish human conduct proportionally.

The necessity of equality to create a just legal system shifts the focus to private law. In the Aristolian tradition, private law is composed of two different kinds of commutative justice which Gordley points out is “what we call tort and contract.” The distinction between them is a significant feature in what might call Aristotle’s theory on law. The first is classified as involuntary transactions. In this situation one party took advantage of the other’s assets against his or her will. Examples of this are fraud, murder and adultery. Commutative or corrective justice obligates that the one who took advantage give back either the asset or whatever the asset is worth; compensation. In voluntary transactions each party willingly gives an agreed upon amount of their assets in exchange for something they want or need. Examples of voluntary transactions are buying, selling and investing. Commutative justice essentially mandates that these exchanges be made at a cost that enriched neither party at the expense of the other. In a responding article written in 2015 Gordley states, “These distinctions not only resemble the ones we draw between contract and tort but may be their linear ancestors.” Many contemporary scholars believe that Gaius, a Roman jurist who championed the idea of delictus and contractus, or tort and contract drew his ideas upon the foundation of Aristotle’s distinction between involuntary and voluntary commutative justice.

Gordley also addresses the argument that private law is based on simple principles of economics. While this theory shares some common ground with Aristotelian theory on exchange, the economic reasoning in private law completely disregards the complex moral aspect of “equitable fairness”. Aristotle’s foundation is based on the concept that law should not enrich one party if this enrichment is the expense of the other party. “Equality, like moral Justice, is a social virtue, and this social nature, common to both moral Justice and Equality, furnishes further proof that they are not two different virtues but merely two aspects



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