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IULM Unit – Milan
The IULM team sets out to highlight the notion of equity from an international perspective, that is by studying the application of equitable principles in the context of international law. As it is widely known, equitable principles emerged as an adjunct to both Roman law and the English common law with the aim to ameliorate or correct the body of civil law. Two prominent legal theorists of the seventeenth century who greatly influenced the emerging law of nations, Grotius and von Pufendorf, assigned an important role to equity in the framework of relations between nations. Grotius, in particular, referred to the Aristotelian idea of equity as twofold – as an understanding of what was right and as a corrective element to moderate the general law.
Equity and Law
The first step of our research aims at analysing the presence of equity within the conventional sources of international law, in particular in the statutes and rules of procedures of international jurisdictional bodies. The notion of equity is not explicitly mentioned among the sources listed in article 38, first paragraph, of the Statute of the International Court of Justice of the United Nations. Nonetheless, equity could be included in the “general principles of law recognised by civilized nations”, as this source of law refers to principles which are shared by international law and various national systems of law. In this light, our research implies an assessment of the relevance of equity in the context of the aforementioned principles.
Our research project aims also to explore the application of equitable principles in the jurisprudence of international jurisdictional bodies starting from the exam of the decisions of the International Court of Justice and extending its focus to the case law of international criminal tribunals, in particular those established to judge crimes committed in ex-Yugoslavia and Rwanda. Paragraph 2 of Article 38 of the same Statute specifies that paragraph 1 “shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto”. The effect of this provision is that the Court may proceed to settle a dispute without strict regard for the existing rules of international law, but in the light of the justice and merits of the case. According to influential scholars, however, the integration in the international law system of the notion of equity derived from the English legal experience requires teleological and functional adaptation and plays an important role in the creation of customary unwritten law. The research team intends to investigate this innovative aspect of international law, i.e. the process underlying the development of customary unwritten law, to identify the role of equitable principles in that sphere. Finally, our team will highlight the relevance of equitable principles in European jurisprudence by examining the case law of the Court of Justice of the European Union (and of the Court of First Instance) and of the European Court of Human Rights.
In the history of English culture the relation between religious and philosophical thought and political and juristic conception is at the core of the literary text in various shapes and ways according to age and genre differences, acting as a means of framing the modern ethical consciousness. The term “modernity” here refers to a variety of cultural phenomena which contribute to the creation of a shared awareness at crucial moments of the historical process.
Equity and Literature
The Elizabethan age marked a turning point in the history of English law and offered a crucial contribution to the development of the modern concept of justice (suffice it to give as an example the laying of the fundamental principles of the international law of war by Alberico Gentili, an Italian jurist holder of the chair of Civil Law at Oxford). The problematic relation between strictum ius (justice absolute) and equity was at the core of the Elizabethan debate on justice. The competences of the various courts were established on the strength of this debate: the various jurisdictions were distributed among the common law courts (Common Pleas, Queen’s Bench, Exchequer) and the prerogative courts. Equitable judgements were the domain of a prerogative court, the Court of Chancery or “court of conscience” as Elizabethan jurists defined it. The Lord Chancellor, as “Keeper of the King’s conscience”, was entrusted with the responsibility to give judgements “according to his conscience”. The term “conscience” in the view of Elizabethan civil jurists, canonists and moral philosophers indicated the capability to assess the degree of compliance of a certain action with natural justice and divine law.
The Elizabethan debate on the moral, theological, political and social implications of the administration of justice is amply documented in a large number of treatises and is dramatized in all its complexity in Book V of The Faerie Queene, a very influential work by virtue of its literary and ethical qualities. Edmund Spenser, at the same time man of letters and statesman, had a great deal of experience in the field of the administration of justice; he was “clerk of faculties” at the Irish Court of Chancery, the English court of equity in Ireland, and secretary of Lord Grey, Elizabeth’s Lord Deputy in Ireland. The six initial episodes of Book V of The Faerie Queene dramatize the enforcement of strictum ius, justice absolute; the central cantos examine the ethical and pragmatic aspects of equity; the epilogue of the book deals with clemency. Among others, a narrative of note offers an allegorical reading of the trial of Mary Stuart as a paradigmatic example of the tension between equity and law, between conscience and the administration of justice. Mary Queen of Scots was condemned to death in order to safeguard the commonweal and the English throne. The Spenserian discourses of justice focus mainly on the moral dilemmas produced by the conflict between the awareness of the imperfect nature of human justice and its necessity as a bulwark against evil and disorder. Spenser’s narratives are also concerned with the issue of the personal responsibility of the individual towards human justice and divine laws. The problematic relation between ideal justice and human justice is at the core of Spenser’s controversial political tract, A View of the Present State of Ireland, which proposes a radical solution to the Anglo-Irish conflict and highlights the incompatibility of juridical systems founded on different principles (the English Common Law and the Irish Brehon Law). Our research sets out to examine the Spenserian texts in the light of the Elizabethan legal, philosophical and moralizing literature in order to emphasize how literary and non-literary texts work in synergy towards the production and diffusion of ideology.
In the Eighteenth century the relation between authority and the individual is the focus of the reflection in literary and non literary texts, from philosophical treatises to periodicals to novels. In the realistic novel the relation between characters and society is at the core of a narrative discourse which dramatizes in the form of the protagonists’ exemplary behaviour the principles behind institutional authority. These principles are strongly influenced by Locke’s conception of the individual as subject of rights, a juridical person as well as a physical person and by Hume’s views of the foundation of justice in “the well-being of mankind and the existence of society”.
From Defoe to Richardson and Fielding in narratives which concentrate on the protagonists’ personal experience in relation to collective authority, novels introduce a highly rationalistic dimension relying on a rhetorical strategy aimed at times to a documentary approach to the didactic function or to the satirical register. The readers, both as addressees and participants in a moral and cultural project, expect leading information. The juridical context, rich in symbolical implications in Richardson, charged with a prevailing documentary and satirical approach in Defoe and Fielding, is omnipresent, as an object of analysis and criticism, as a subject of debate in which equity is the term of reference. In Tristram Shandy which responds to the eighteenth-century interest in treatises, encyclopaedias, dictionaries, legal compendiums.with a play on intertextuality which has no parallel in the history of the novel, Sterne’s parodic gaze turns a breach of the matrimonial law into the genesis of his protagonist’s “misfortunes”.