Ius Romanum pragmaticum versus aequitas romana: una versión anticipada del binomio eficiencia/equidad, emblema del Análisis Económico del Derecho (AED)

Abstract

One of the essential attributes of Roman law is its pragmatic character, represented by the extra-legal value of the utilitas. In turn, the aequitas is presented as one of the basic principles that has shaped, both the Romanum Ius, as the same Roman society. Both elements, utilitas and aequitas, converge and complement each other in the Roman notion of iustitia. The leading role in the Roman Law of the triad (utilitas, aequitas, iustitia) can be redirected at present through the existing connection between the law and the economy, so that decision-making concerns, and recourse to the legal norm in that sense. We are entering, then, into a subject as controversial as it is exciting: the search for a balance between efficiency and equity, an emblematic aspect in the sphere of the economic analysis of law (AED).