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Functions of Equity

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Chapter Summary

This chapter sets out a scheme to graphically chart the workings of equity in legal argument. This will allow us to clearly see the three planes set of the ?three-dimensional?: the planes of facts, norms and values. Equity comes into play through the figure of the judge, the one who applies the law, but it may also enter the process earlier via the legislator who, when elaborating the law, may make the idea of justice-which should preside over all legal systems-be reflected in the ?ratio? of the law. There thus exist two justices. One is abstract and general, justice in its ?genuine? sense (J). The other is justice in the specific case, which we might call ?justeza?-an adapting of abstract justice to the peculiarities of real situations. We might also term this type of justice ?equity?. The result of a judge?s applying equity is a decision or sentence maxim (DM).

Keywords: equity; factual plane; normative plane; values plane



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