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358 ‘ law’

editor James Hastings
358 ‘ law’ or principle. This supposed ‘ law’ is the mind’s sense of right, or some standard assumed to represent it. In speaking of the obscurity and equivocation of the terms, Aristotle says: ‘ What obscures the matter is that, though what is equi-table is just, it is not identical with, but a correc-tion of, that which is just according to law. The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms.’ Hence, when a positive law does not strictly apply to the special case in hand, an appeal has to be made to ‘ equity,’ which means some principle of ‘ justice’ or right on which the legal enactment is supposedly based or which it is in-tended to serve. For instance, the law may be that a person convicted of murder shall be hanged, but the conviction may be wrong, and, when there is reason to believe this, ‘ equity’ may come in, when process of law will not deal with the matter and remit the punishment. Sir Henry Maine ( Anc. Law, p. 60 ff.) suggests that the distinction between ‘ justice’ and ‘ equity’ grew out of the contradictions in the positive law which recognized class distinctions, and the growth of a sense of equality in the application of the right. ‘ It is remarkable,’ he says, ‘ that the “ equality” of laws on which the Greek democracies prided themselves . . . had little in common with the “ equity” of the Romans. The first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the ap-plicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. The first excluded a despot; the last included foreigners, and for some purposes slaves. On the whole, I should be disposed to look in another direction for the germ of the Roman “ Equity.” The Latin word “ aequus” carries with it more distinctly than the Greek ïσoς the sense of levelling. Now its levelling tendency was exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pure Quiritarian law recognized a multitude of arbitrary distinctions between classes of men and kinds of property: the Jus Gentium, generalized from a com-parison of various customs, neglected the Quiritarian divisions. The old Roman law established, for example, a fundamental difference between “ Agnatic” and “ Cognatic” relationship, that is, between the Family considered as based upon common subjection to patriarchal authority and the Family considered ( in conformity with modern ideas) as united through the mere fact of a common descent. This distinction disappears in the “ law common to all nations,” as also does the difference be-tween the archaic forms of property, Things “ Mancipi” and Things “ nec Mancipi.” The neglect of demarcations and bound-aries seems to me, therefore, the feature of the Jus Gentium which was depicted in Æquitas. I imagine that the word was at first a mere description of that constant levelling or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. Probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive Roman mind.’ The ethical colouring which the conception ob-tained was probably due to the influence of Christianity, with its sense of the value of indi-vidual men and their equality before God and so before the law. It thus came to represent the basis upon which positive law at least pretended to stand. It was at first the mere correction of anomalies in the application of the law, but the rise of the idea that all laws had a basis higher than mere legisla-tive enactment, and did not rest on the arbitrary will of the lawgiver or a capricious contract, gave it an ethical meaning superior to all others in au-thority, and made it the ground on which common law had to rest for its justification. LITERATURE.— Aristotle, Nicomachean Ethics, bk. v.; H. Maine, Ancient Law10, Lond. 1907, ch. iii.; T. E. Holland, Jurisprudence, Oxf. 1880. See also art. ‘ Equity,’ in EBr11. JAMES. H. HYSLOP. EQU I VOCAT ION ( Logical). 1— Equivocation is one of the verbal fallacies, that is, one of those in which a conclusion is not validly inferred, because of the improper or ambiguous use of words in the course of the argument. In particular, equivoca-tion is that verbal fallacy which is due to the 1 For equivocation in the ethical sense, see CASUISTRY, LYING. employment of the same word in two senses. For example, ‘ The holder of some shares in the lottery is sure to gain the prize; and, as I am the holder of some shares in the lottery, I am sure to gain the prize’; or, again, the old illustration, ‘ Who is most hungry eats most, who eats least is most hungry, therefore who eats least eats most.’ As there are three terms in the syllogism, and as each of these terms appears twice, there are three possible places where equivocation may be lo-cated: on the one hand, in the middle term, or wholly in the premisses; on the other hand, in either the major or the minor term; and so, in part, in the conclusion. But it is usually to be found in the middle term. Since in equivocation we use the words denoting one of these terms in two senses, we really have not one term but two, and so altogether four in our syllogism. Thus equivocation, as is true of so many other fallacies, is but a species of the fallacy of four terms. Jevons gives three causes which especially lead to equivocation: ( 1) the accidental confusion of different words, e. g. mean ( the average) and mean ( the despicable); ( 2) the giving of the name of one object to another object with which that object is associated, e. g. church, house, court; ( 3) the giving of the name of one object to a second object in some respect similar to the first, e. g. sweetness ( of music), light ( of knowledge). But behind the equivocal use of words there is always of necessity some ignorance regarding the things for which the words stand; and in some cases it is difficult to decide whether to call the fallacy equivocation or one of the material fallacies, es-pecially accident ( q. v.). Hence it happens that the complete exposure of an equivocation is often far more than merely a matter regarding the meaning of a word, being rather an analysis and discrimi-nation of the objects themselves denoted by the word. For example, to make clear the meaning of such words and phrases as ‘ identity,’ ‘ I,’ ‘ laws of Nature,’ ‘ the freedom of the will,’ in philoso-phy— not to mention ambiguous words and phrases which have played an important part in the history of theology, ethics, economics, and other sciences— has proved not only a difficult task for the student, but also an important step forward in the development of his science. See, further, art. LOGIC. LITERATURE.— J. S. Mill, Logic, ed. London, 1884, pt. v. ch. vii.; A. Sidgwick, Fallacies, London, 1883, N. Y. 1884; W. S. Jevons, Lessons in Logic2 · , London, 1890, Lessons iv. and xx.; and other text- books in Logic. W. T. MARVIN. ER A SM US.— See HUMANISTS. ER A S T I A N ISM.— 1. Definition, deriva-tion, and delimitation of the term.— The opening of Figgis’s brilliant essay, ‘ Erastus and Erastianism’ ( in JThSt ii. [ 1900] 66 ff.), ‘ Was Erastus an Erastian?’ suggests, on the one hand, the distance between the views actually propounded by Erastus and the principles of modern Erastianism; and, on the other hand, the difficulty of fixing the meaning of an elusive term in political nomenclature; while the title of Bonnard’s invaluable monograph, Thomas Éraste et la discipline ecclésiastique ( Lausanne, 1894), fixes the attention upon the limited area of the contro-versy with which Erastus was concerned. Robert Lee, in his historical Preface to The Theses of Erastus touching Excommunication1 ( Edinburgh, 1844), labours to exhibit the ignorant abuse of the terms ‘ Erastian’ and ‘ Erastianism’ by those who, in the heat of the Disruption, applied them to the Established 1 The translation published by Lee is a revision of the first Eng. tr. of the Theses, entitled, The Nullity of Church Censures ( London, 1659), and containing an account of Erastus taken from Adam Melchior’s de Vitis Germanorum Medicorum. Another tr., A Trea-tise of Excommunication, appeared in 1682 ( London, printed for L. Curtis). EQUIVOCATION ( Logical)— ERASTI ANISMAnd— Art | Art— Bun | Bur— Con | Con— Dra | Dra— Fic | Fic— Hyk | Hym— Lib | Lif— Mul | Mun— Phr | Pic— Sac | Sac— Sud | Suf— Zwi P  a g e      V i e w Search | F i n d | H o m e | Index   P a g e      V i e w

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358 ‘ law’ or principle. This supposed ‘ law’ is the mind’s sense of right, or some standard assumed to represent it. In speaking of the obscurity and equivocation of the terms, Aristotle says: ‘ What obscures the matter is that, though what is equi-table is just, it is not identical with, but a correc-tion of, that which is just according to law. The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms.’ Hence, when a positive law does not strictly apply to the special case in hand, an appeal has to be made to ‘ equity,’ which means some principle of ‘ justice’ or right on which the legal enactment is supposedly based or which it is in-tended to serve. For instance, the law may be that a person convicted of murder shall be hanged, but the conviction may be wrong, and, when there is reason to believe this, ‘ equity’ may come in, when process of law will not deal with the matter and remit the punishment. Sir Henry Maine ( Anc. Law, p. 60 ff.) suggests that the distinction between ‘ justice’ and ‘ equity’ grew out of the contradictions in the positive law which recognized class distinctions, and the growth of a sense of equality in the application of the right. ‘ It is remarkable,’ he says, ‘ that the “ equality” of laws on which the Greek democracies prided themselves . . . had little in common with the “ equity” of the Romans. The first was an equal administration of civil laws among the citizens, however limited the class of citizens might be; the last implied the ap-plicability of a law, which was not civil law, to a class which did not necessarily consist of citizens. The first excluded a despot; the last included foreigners, and for some purposes slaves. On the whole, I should be disposed to look in another direction for the germ of the Roman “ Equity.” The Latin word “ aequus” carries with it more distinctly than the Greek ïσoς the sense of levelling. Now its levelling tendency was exactly the characteristic of the Jus Gentium, which would be most striking to a primitive Roman. The pure Quiritarian law recognized a multitude of arbitrary distinctions between classes of men and kinds of property: the Jus Gentium, generalized from a com-parison of various customs, neglected the Quiritarian divisions. The old Roman law established, for example, a fundamental difference between “ Agnatic” and “ Cognatic” relationship, that is, between the Family considered as based upon common subjection to patriarchal authority and the Family considered ( in conformity with modern ideas) as united through the mere fact of a common descent. This distinction disappears in the “ law common to all nations,” as also does the difference be-tween the archaic forms of property, Things “ Mancipi” and Things “ nec Mancipi.” The neglect of demarcations and bound-aries seems to me, therefore, the feature of the Jus Gentium which was depicted in Æquitas. I imagine that the word was at first a mere description of that constant levelling or removal of irregularities which went on wherever the prætorian system was applied to the cases of foreign litigants. Probably no colour of ethical meaning belonged at first to the expression; nor is there any reason to believe that the process which it indicated was otherwise than extremely distasteful to the primitive Roman mind.’ The ethical colouring which the conception ob-tained was probably due to the influence of Christianity, with its sense of the value of indi-vidual men and their equality before God and so before the law. It thus came to represent the basis upon which positive law at least pretended to stand. It was at first the mere correction of anomalies in the application of the law, but the rise of the idea that all laws had a basis higher than mere legisla-tive enactment, and did not rest on the arbitrary will of the lawgiver or a capricious contract, gave it an ethical meaning superior to all others in au-thority, and made it the ground on which common law had to rest for its justification. LITERATURE.— Aristotle, Nicomachean Ethics, bk. v.; H. Maine, Ancient Law10, Lond. 1907, ch. iii.; T. E. Holland, Jurisprudence, Oxf. 1880. See also art. ‘ Equity,’ in EBr11. JAMES. H. HYSLOP. EQU I VOCAT ION ( Logical). 1— Equivocation is one of the verbal fallacies, that is, one of those in which a conclusion is not validly inferred, because of the improper or ambiguous use of words in the course of the argument. In particular, equivoca-tion is that verbal fallacy which is due to the 1 For equivocation in the ethical sense, see CASUISTRY, LYING. employment of the same word in two senses. For example, ‘ The holder of some shares in the lottery is sure to gain the prize; and, as I am the holder of some shares in the lottery, I am sure to gain the prize’; or, again, the old illustration, ‘ Who is most hungry eats most, who eats least is most hungry, therefore who eats least eats most.’ As there are three terms in the syllogism, and as each of these terms appears twice, there are three possible places where equivocation may be lo-cated: on the one hand, in the middle term, or wholly in the premisses; on the other hand, in either the major or the minor term; and so, in part, in the conclusion. But it is usually to be found in the middle term. Since in equivocation we use the words denoting one of these terms in two senses, we really have not one term but two, and so altogether four in our syllogism. Thus equivocation, as is true of so many other fallacies, is but a species of the fallacy of four terms. Jevons gives three causes which especially lead to equivocation: ( 1) the accidental confusion of different words, e. g. mean ( the average) and mean ( the despicable); ( 2) the giving of the name of one object to another object with which that object is associated, e. g. church, house, court; ( 3) the giving of the name of one object to a second object in some respect similar to the first, e. g. sweetness ( of music), light ( of knowledge). But behind the equivocal use of words there is always of necessity some ignorance regarding the things for which the words stand; and in some cases it is difficult to decide whether to call the fallacy equivocation or one of the material fallacies, es-pecially accident ( q. v.). Hence it happens that the complete exposure of an equivocation is often far more than merely a matter regarding the meaning of a word, being rather an analysis and discrimi-nation of the objects themselves denoted by the word. For example, to make clear the meaning of such words and phrases as ‘ identity,’ ‘ I,’ ‘ laws of Nature,’ ‘ the freedom of the will,’ in philoso-phy— not to mention ambiguous words and phrases which have played an important part in the history of theology, ethics, economics, and other sciences— has proved not only a difficult task for the student, but also an important step forward in the development of his science. See, further, art. LOGIC. LITERATURE.— J. S. Mill, Logic, ed. London, 1884, pt. v. ch. vii.; A. Sidgwick, Fallacies, London, 1883, N. Y. 1884; W. S. Jevons, Lessons in Logic2 · , London, 1890, Lessons iv. and xx.; and other text- books in Logic. W. T. MARVIN. ER A SM US.— See HUMANISTS. ER A S T I A N ISM.— 1. Definition, deriva-tion, and delimitation of the term.— The opening of Figgis’s brilliant essay, ‘ Erastus and Erastianism’ ( in JThSt ii. [ 1900] 66 ff.), ‘ Was Erastus an Erastian?’ suggests, on the one hand, the distance between the views actually propounded by Erastus and the principles of modern Erastianism; and, on the other hand, the difficulty of fixing the meaning of an elusive term in political nomenclature; while the title of Bonnard’s invaluable monograph, Thomas Éraste et la discipline ecclésiastique ( Lausanne, 1894), fixes the attention upon the limited area of the contro-versy with which Erastus was concerned. Robert Lee, in his historical Preface to The Theses of Erastus touching Excommunication1 ( Edinburgh, 1844), labours to exhibit the ignorant abuse of the terms ‘ Erastian’ and ‘ Erastianism’ by those who, in the heat of the Disruption, applied them to the Established 1 The translation published by Lee is a revision of the first Eng. tr. of the Theses, entitled, The Nullity of Church Censures ( London, 1659), and containing an account of Erastus taken from Adam Melchior’s de Vitis Germanorum Medicorum. Another tr., A Trea-tise of Excommunication, appeared in 1682 ( London, printed for L. Curtis). EQUIVOCATION ( Logical)— ERASTI ANISM And— Art | Art— Bun | Bur— Con | Con— Dra | Dra— Fic | Fic— Hyk | Hym— Lib | Lif— Mul | Mun— Phr | Pic— Sac | Sac— Sud | Suf— Zwi << P a g e > > < < V i e w >> Search | F i n d | H o m e | Index << P a g e > > < < V i e w >>
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