Understanding Aristotle’s Justice: Distributive and Commutative
Aristotle’s Particular Justice: Concept and Classification
Particular justice governs the distributions or exchanges of property, focusing on individual well-being. It emphasizes the principle of equal sharing, classifying justice as distributive and commutative (corrective or equalizing).
Distributive Justice
Distributive justice adheres to the principle of equality, applied in the distribution of honors, goods, positions, or anything shared among members of the polis. This isn’t strict mathematical equality but proportional equality based on individual merit. Recognizing varying merits is crucial; disregarding them in distribution can lead to injustice. This concept is closely tied to Aristotelian equity, which moderates potential harm from strict equality.
Commutative Justice
Commutative justice (corrective or equalizing) governs interactions between individuals, concerning the exchange of items or services. It applies a principle of mathematical equality, not proportionality, requiring absolute equality between what is given and received. For example, in a sale, the value of the item sold should equal the price paid.
Interpretation According to Kelsen
Concept
Interpretation is a mental process accompanying the implementation of law, transitioning from a higher to a lower level, or from a more general rule to a less general one.
Classification
- Authentic Interpretation: Performed by the body responsible for applying the law.
- Non-Authentic Interpretation: Performed by private individuals, particularly in legal scholarship.
Cases of Unintentional Uncertainty
Indeterminacy can be unintentional, arising as an unintended consequence of applying the rule of law. This can occur due to:
- Ambiguity: A word or phrase in the rule is ambiguous, leading to multiple possible meanings and hindering uniform application.
- Discrepancy: A discrepancy arises between the linguistic expression of the rule and the intent of its creators. The intended meaning (legislative intent or contractual intention) may not align with the words used. This discrepancy can be complete or partial.
- Conflicting Rules: Two or more valid rules simultaneously claim contradictory applications, either wholly or partially.
In such cases of indeterminacy, law enforcement faces multiple possibilities. The right to apply the law provides a framework within which several applications are possible. The decision remains consistent with the law if it stays within that framework, filling it in any permissible way.
System of the Fellowship of the Law
General Rule in Conflict of Laws
In cases of conflict of laws, Savigny suggests applying the law most aligned with the legal nature of the problem, whether national or foreign. This means choosing the law that best resolves the dispute at hand.