22 June 2014

Herman Bavinck: "Ethics and Politics" 1.0

Picking up another well-written insight from early twentieth century Dutch theologian Herman Bavinck:
It is important to note that the law is always incomplete and faulty; it never covers the richness of life. This comes to expression especially in a court of law, when the judge is not sufficiently served by the law and in most cases does not find its interpretation and application sufficient; then he consciously or subconsciously makes use of values and norms that are not expressed in the law but that are derived from his own conscience and experience.  From of old ... there also was room for reasonableness, for the realization that no matter how precise and complete the law, it can never completely fulfill the demands of justice.
This is what the Greeks called epeikeia, the Romans aequitas, and what we more commonly call equity.

This sort of equity is not to be confused with the Anglo-American law of equity. For more on the distinction between equity as a mode of application and equity as a body of substantive law with remedies, you can read the first few pages of my article Third Time's the Charm: The Coming Impact of the Restatement (Third), Restitution and Unjust Enrichment in Bankruptcy (download here). And, for what it's worth, John Calvin would have agreed with Bavinck (no surprise). See Guenther H. Haas, The Concept of Equity in Calvin’s Ethics  (1997) or my piece, God's Bridle: John Calvin's Use of Natural Law (download here).

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