Billigkeit, Klugheit und moralische Quantität der Handlung in Samuel Pufendorfs Rechtslehre

The present essay intends to reconstruct the fundamental function of the juridical-formal procedure, carried out by equity in Samuel Pufendorf’s legal theory, aiming at the adequate application of the positive norm to an exceptional case. To this end, equity conveys the moral contents of the natural law within the positive one, especially if the latter presents gaps or is in contradiction with the former. In this context, not only the interpretative equity of the judge but also the freer equity of the arbitrator is analysed. The essay also examines the characteristics of the equitable judgement, conceived by Pufendorf in the form of the rhetorical syllogism or enthymeme, operating within the moral discipline of prudentia. As such, equity is therefore closely linked to the pufendorfian methodological question if man’s free action is measurable with the exact mathematical criteria or with the most approximate equitable ones. In this methodological context, Pufendorf interprets equity as the criterion for measuring the moral quantity of an action.