Equity, Conscience, and the Law: A Genealogy of the Judge’s Conviction

Abstract

The paper traces a European genealogy of judicial conviction, showing how the balance between law and conscience, rule and equity, has shaped the evolution of legal reasoning from Antiquity to contemporary philosophy. Beginning with Aristotle’s notion of epieikeia as a corrective to rigid legal generality, the text follows its development through Roman thought, medieval theology (Aquinas), the Enlightenment’s rational critique (Montesquieu), and the 20th-century rejection of positivism after the totalitarian experience (Radbruch). In modern theory, Dworkin’s “law as integrity”, Fuller’s morality of law, and Ricoeur’s hermeneutics reinforce the idea that law must remain inseparable from moral reasoning.

The second part explores the judge’s role as mediator between reason and compassion. Kantian practical reason, Aristotelian phronesis, and reflections from Arendt, Nussbaum, MacIntyre, Sen, and Shklar portray judicial conviction as a moral-reflective process grounded in empathy without abandoning rigor. Ultimately, the chapter argues that judging is an act of deliberative moral interpretation, where the judge safeguards both the authority of the law and the dignity of the human person.