Preliminary to an Appeal to Equity


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Four Theses

Preliminary to an Appeal to Equity
Equity is justice in that it goes beyond the written law. And it is equitable to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the judge looks only to the law, and the reason why arbitrators were appointed was that equity might prevail.” 1

Clarity on the meaning of equity is a precondition for an appeal to equity – or at least it ought to be. There have been many recent appeals for more equity (or at least no less) in arbitration,2 in federal procedure,3 in environmental law,4 in international law,5 and, most naturally, in sentencing.6 There is even an argument that maintaining the health of equity is a constitutional obligation.7 It is not uncommon for these appeals to make some attempt to define what is meant by equity, usually through an argument based on history or authority, particularly that of Aristotle. Given the place of precedent in our system, history is clearly not only of antiquarian interest. Sometimes contemporary appeals to equity also assume a kind of analysis of equity, namely that there is an essential concept of the equitable, which, again, is generally assumed to have been first discovered by Aristotle.

This Note aims to enable future better appeals to equity through advancing four theses about the history and the concept of equity. The four theses are as follows:

  1. Aristotle’s account of equity has been received into the legal tradition many times and this reception is ongoing today.
  2. Aristotelian equity is not primarily legal.

  3. There is no unified concept of equity.

  4. The primary aspects of equity have metaphysical grounds.

Because there is neither a unified concept nor a direct evolutionary history nor a simple account, i.e. Aristotle’s, which would allow one to bypass the confused reality of the tradition, appealing to equity is more fraught than is commonly recognized. Equity should be appealed to, but only after it is clear what aspect of equity is being discussed and in what broader context.

The confusion as to what we are discussing when we say “equity” could be covering up some important issues or at least questions. The association of arbitration with equity, for example, goes back to Aristotle, a tradition even now referred to by one of the leading institutions and industries involved in arbitration, namely the securities industry (see the quotation preceding this Note). However, if we assume, following Roscoe Pound, that the 20th century began with equity in decline, then what does it mean that it later saw a great flourishing of arbitration? 8 Was Pound wrong then or has equity been revived along with arbitration or is modern arbitration somehow inequitable? Or were Pound’s concerns simply of no relation to what Aristotle meant when he associated equity with arbitration?

More concretely, the Supreme Court seems to be under the impression that arbitration is merely a change in forum that affects no substantive rights.9 How can this be when a leading arbitration organization celebrates the role of equity in contrast to law? Is not one of the primary justifications for arbitration, also recognized by the Court,10 that arbitrators can bring localized knowledge and expertise to bear on a problem? These questions are hardly insoluble. It is possible that the Court understands the reality of contemporary securities arbitration is other than what the opening quotation to its rules would suggest, or perhaps it is the case that arbitration has become (or should become) more legal and less equitable, or perhaps different rationales apply to different contexts, but none of these or other solutions can be adopted without first getting clear on what equity means.

This Note has a spiral structure, with Aristotle’s account of equity the central point to which we will return again and again, each time deepening our reading. Before we can sketch out the historical moments in which Aristotle’s account of equity has been received, I will present a brief discussion of what it is Aristotle says about equity. After the sketch of the various receptions (Thesis I), I will return to Aristotle to make the argument that despite its centrality to our legal tradition, Aristotle’s notion of equity was not primarily a legal notion in our sense (Thesis II). At this point, equipped with a deeper reading of Aristotle and some sense of the richness of the equity tradition, I will collect the various aspects of equity that have been important to the tradition (Thesis III).

Finally, this catalog will make clear what was already been implicit, namely that until recently equity was not appealed to as a merely logical or procedural idea or even as another body of substantive rights. Rather, the equity tradition is a tradition of appealing to a particular metaphysics, though not always the same metaphysics (Thesis IV). By metaphysics here I mean primarily an appeal to an argument as to what there is (i.e. an ontology), but also to what is the proper role for humans given what there is – i.e. a conception of the good life (i.e. an ethics). We will also see, relatedly, that such appeals out of the law have political implications, and these should also be attended to.

Aristotle on Epieikeia

There is general agreement that the equity tradition begins with Aristotle. Yet like any true beginning, thinking about equity actually starts earlier; there is no creation ex nihilo, and, as Aristotle demonstrates in the characteristic manner in which he begins his works, one needs to start from one’s predecessors. The tradition of epieikeia, the word now translated as equity, begins in Homer, where epieikeia and its cognates means what is appropriate, as when Achilles, hosting the funeral games in Book Twenty-Three of the Iliad, argues that it would be epieikeia to give a prize to the warrior who came in last (23.537). These games, and particularly Achilles’ conduct in leading them, represent Achilles’ re-absorption into his community after his brooding, treasonous and then murderous rage. Another especially striking instance of epieikeia is in Book One of the Iliad, where Zeus insists that he tells Hera all that is epieikeia for her to hear (1.547); Hera is not pacified by this and is certain that Zeus has been scheming against the Greeks. She persists in questioning him and Zeus then threatens her with violence, reminding her that all the gods on Olympus could not save her should he attack her – she drops the subject.11 Zeus’ threat is a reminder that the alternative to an agreement on epieikeia may well be a resort to force.

By the 5th Century B.C., the rhetorician Gorgias contrasted “mild epieikeia” with “stubborn justice [dike]” (Diels-Kranz 82b6). The historian Thucydides also contrasts epieikeia and justice, and Hobbes translates epieikeia sometimes as “equity” (1.76.4, 71) and sometimes as “lenity” (3.40.2, 198).12 Fourth Century orators also appeal to epieikeia, though they do not give it a consistent technical sense – contrary to what one might have assumed based on Aristotle.13 For instance, Demosthenes asks whether and how an opponent can claim to be a man of epieikeia, that is, a man who does what is proper (22.40). In Against Meidias (21.90), Demosthenes uses epieikeia to mean leniency, urging none to be shown to his opponent, though not long later (21.207), he explicitly offers a “sign” of his own epieikeia. Thus in one speech Demosthenes uses epieikeia in the sense of propriety, which he claims for himself, and also as somehow less strict than law, which he wishes to deny to his enemy. The two senses can be seen as continuous insofar as one does not deserve epieikeia if one is not oneself a man of epieikeia.

There are two main discussions of epieikeia in the works of Aristotle, with his discussion in Book Five, Chapter 10 of the Nicomachean Ethics the more famous and influential. Nevertheless, the treatment of epieikeia in Book One, Chapters 13 and 15 of the Rhetoric is in many ways fuller. I will begin by sketching out the main points Aristotle makes about epieikeia in the Ethics.

First, Aristotle states that epieikeia is a “correction of legal justice,” though it is not itself legal. Second, he explains the need for this corrective as a product of the necessarily general nature of legal rules. Third, in deciding just how to correct the general law, Aristotle instructs us to look to how the lawmaker would have decided this case had he been aware of it. Fourth, Aristotle recognizes that not all can be determined by law, and it is in this regard that he offers the image of the leaden measuring device used by Lesbian builders – just like this flexible leaden rule can bend to the shape of the stone, so too specific decrees (versus general laws) can be issued to meet the specifics of a case. Finally, the person who is characterized by epieikeia is he who does equitable things both by choice and habit and is not a “stickler for his legal share” and is indeed willing to accept less even when he has law on his side.

It is easy to see what is so appealing about this account. Aristotle provides a method (look to intentions) to solve a necessary problem (the connection of the general to the specific), and, as he does so, he makes it clear that in this sense epieikeia is superior to merely following the law strictly. Aristotle even addresses, implicitly, what we would call the separation of powers issue inherent to equity. After all, Aristotle is only implicit in recommending epieikeia to a judge/jury in the context of a legal dispute, but is explicit in recommending epieikeia to a legislative body, i.e. the Assembly should issue specific decrees to correct defects in its general laws – it is these precise instruments that approximate the leaden measuring device of the Lesbian builders, not any kind of judicial discretion or expertise. We can also see the continuity between Aristotle’s usage and what comes before. To be a man of epieikeia is to do what is proper and to appeal to epieikeia is to appeal to a norm less rigid than law but that is one’s due in another sense.

In the Rhetoric, Aristotle makes some additional points. First, Aristotle connects epieikeia with the unwritten law, which makes sense because it is a correction of law that has been written down, which one can see as necessarily general (1.13). Interestingly, Aristotle also treats written laws as a brute given to be manipulated by the skillful rhetorician, just like hostile witnesses or contracts (1.15). Second, Aristotle argues that it is a technical rhetorical skill to appeal to epieikeia in a forensic context (1.13). Finally, and obviously, it is in the Rhetoric that Aristotle makes it explicit that epieikeia can be appealed to (indeed ought to be) in the context of a trial and not a debate in the Assembly.

Indeed Aristotle goes on at length as to what it is to show epieikeia and, since this discussion is not as well known and adds a great deal, it is worth quoting at length:

And it is epieikeia to excuse things characteristically human. And to look not to the law but toward the lawgiver; and not to the letter of the law, but to the intention of the lawgiver; and not to the action but to the purpose; and not to the part but to the whole; not to how someone is now, but to how he was, either always or most of the time; and to remember being treated well rather than badly, and the good received rather than done. And to be patient though being wronged. And to prefer to be judged by reason [logos] over deeds. And to prefer to go to arbitration rather than court. For the arbitrator sees the equitable, but the citizen-juror only the law. And it was because of this that the arbitrator was invented, so that epieikeia might prevail. (1.13)

This beautiful passage develops what it is to show epieikeia; we have seen the end of this passage, which connects arbitration and epieikeia already, as the frontspiece to the securities industry’s arbitration manual.

As far as nomenclature goes, from now on I will refer to equity and not to epieikeia. As will be clear from the next section, the identification of epieikeia and aequitas is itself a matter of scholarly contention, at least for Roman law. From our perspective today, i.e. post-Aquinas, it seems clear that epieikeia is generally taken up into mainstream legal thought as equity and I do not see what is to be gained through proliferating ambiguous terms, and so I will use equity unless epieikeia is necessary in context.

Thesis 1: Aristotelian equity has been received into western law numerous times and this reception is ongoing.

The brief discussion of equity above may seem simple and relatively unified; it is particularized justice. Perhaps so it seemed to Aristotle as well, but the history of western law has peeled part and actualized different aspects of Aristotle’s equity, which makes it very difficult to say just when, if at all, Aristotle’s teaching has been received into the mainstream of western law. We will begin with the first possible moment for the reception of Aristotle, namely into classical Roman law.

Taking equity as a particularized exception from the general law, Alan Watson finds very little equity in classical Roman law, while Pothier, taking equity as perfect justice saw nothing but equity as that which Roman law was striving to achieve.14 Coing argues that by late antiquity, Aristotelian epieikeia as aequitas has definitely been received, but Coing focuses on Aristotle as contributing the equitable idea that there can be grades of punishment based on whether the wrongdoing was voluntary.15 Focusing on equity as discretion, there was clearly equity in Roman law from the start in the office of the praetor.16

Assimilating, plausibly, equity with the obligation to negotiate and interpret treaties in good faith, Ziegler finds equitable interpretation in Roman law, particularly as regards international relations.17 The key passage from Cicero is rightly famous and connects many different aspects of equity and so, like Ziegler, I will quote it at length:

Injustice often arises also through chicanery, that is, through an oversubtle and even fraudulent construction of the law. This it is that gave rise to the now familiar saw, “More law, less justice” [summum ius summa iniuria]. Through such interpretation also a great deal of wrong is committed in transactions between state and state; thus, when a truce had been made with the enemy for thirty days, a famous general went to ravaging their fields by night, because, he said, the truce stipulated “days” and not nights. Not even our own countrymen’s action is to be commended, if what is told of Quintus Fabius Labeo is true – or whoever it was (for I have no authority but hearsay): appointed by the Senate to arbitrate a boundary dispute between Nola and Naples, he took up the case and interviewed both parties separately, asking them not to proceed in a covetous or grasping spirit, but to make some concession rather than claim some accession. When each party had agreed to this, there was a considerable strip of territory left between them. And so he set the boundary of each city as each had severally agreed; and the tract in between he awarded to the Roman people. Now that is swindling, not arbitration. 18

In the example of the general we have an instance of deliberately inequitable interpretation, which Cicero rightfully connects to the phrase summum ius, summa iniuria, though the truth of this saying does not seem to require an inequitable interpretation of the law to begin with. Returning to Aristotle, the equitable man has the law on his side without need of dubious interpretation and yet does not push his advantage. The treacherous arbitrator demonstrates why some sort of external standard seems necessary even for unique extra-legal adjudications, and the context of the two examples demonstrates why the appeal of equity would be very strong as regards international relations.

Buckland and Stein summarize the situation as regards aequitas in Roman law as follows:

The word aequitas figures in juristic texts, in so many senses that it is of no great use [The footnote here reads: Cicero gives it many senses, as the basis of all law, or of the civil law or as contrasted with this]. Its basic meaning for classical law is “fairness” but in post-classical texts it is used to mean benignitas, indulgentia and the like and is used to justify modifications of law in favour of the weaker party in a way which has little relation to the old conception of “fairness” and often ushers in a rule the implications of which must have made the applications of the law very uncertain. That the strict law at times worked unfairly (summum ius, summa iniuria) was recognized in the Edictal reforms and the juristic “interpretatio.” It has recently been shewn with a wealth of illustration [footnote to Stroux] that the modification of law in the direction of aequitas, inspired by Greek philosophy, through the rhetoricians, was strongly operative among the lawyers of Cicero’s time. It tends to interpretation according to intent, rather than literal (voluntas as against verba) and to such interpretation as gives a fair result, which is not quite the same thing. The changes are only gradually realized, but their prominence in republican times is a serious difficulty in the way of those writers who are inclined to see in allusions to “voluntas” and the like signs of Byzantine interpolation.19

Though clearly no simple conclusion is possible, it seems fair to conclude that Roman law had absorbed some aspects of epieikeia, e.g. looking to intent, particularly through Cicero, while others were homegrown, particularly the praetor’s discretion and the connection between equity and international law. It is interesting to note that in using his discretion, the praetor seems to have worked to effect what we would now consider specifically equitable doctrines, i.e. doctrines developed in the Court of Chancery. Here are two examples offered by Peter Stein:

The praetor was concerned to apply the principle that parties who had seriously entered into transactions should have their intentions fulfilled, even though they had failed to comply with the particular forms laid down by the law. This principle is exemplified by the development of so-called “bonitary ownership”….

The Roman lawyers recognized expressly a general principle that no one ought to be enriched to the detriment of another…20

The next major reception of Aristotle occurs in the 13th century with the rediscovery of Aristotle, particularly in the work of St. Thomas Aquinas, who translates epieikeia as aequitas.21 Aequitas as analyzed by Baldus (1327-1400) appears to have virtually all of the aspects that are first found in Aristotle and are then developed in different parts of the tradition.22 The crucial innovation of St. Thomas and those that follow in his tradition is that now equity is connected with a fixed natural law that comes from God.23 This is a simplification given the complex nomenclature of law that St. Thomas develops from Aristotle, but the upshot is that there is another law that effectively limits the laws that a legislator may pass and thus limits what an individual or a judge can be asked to do in the name of the law.24 Faced with such injustice, the “proper technique of equitable construction” is to look to the dictates of the natural law.25

This is not to say that there was no equity in the law before the explicit reception of Aristotle in the 13th century. Insofar as equity is a relaxation of the rigor of customary or legislative law, DeVine finds equity in Gratian’s Decretum, and thus at the core of the canon law. Especially interesting is that DeVine argues that customary or legislative law is to be relaxed in favor of the “natural-divine law.”26 This is interesting because this is another explicit instance of an appeal to equity functioning as an appeal from one law to a higher law, and a law that will soon be explicitly justified as more equitable because more merciful, i.e. consonant with Christian values. Irnerius, founder of the University of Bologna and one of the first great scholars of the Corpus, also appeals to the principle of equity in the context of legal interpretation: “It is only when the written laws are adjusted to the principle of equity that the true legal rules can be gleaned from them by the judge.”27

The next and arguably most important reception of Aristotle occurred in the 16th and 17th centuries. This is most well-known in the work of the humanists, like Erasmus, who further naturalize equity.28 As Kisch argues, the natural law developed by the humanists did not contradict Christian theology, but supposedly emerging from reason itself, was independent of it, and hence its future independent history.29 Both divine law and the law of reason provide a spirit of the law that should be preserved against overly literal, “Jewish,” interpretation, which “impl[ied] a literalism untouched by grace or reason.”30 For Grotius, who is central to the application of equity to international law, equity was of no use within natural law itself because “nature speaks no more universally than a matter requires,” but equity retains its importance in human law to the extent that human law must remain general.31 The law of nature thus provides Grotius with an additional interpretive tool, particularly useful as regards treaties, because now the legislator or treaty makers can be presumed to have wished “to govern all things according to the principles of nature.”32 Cicero’s clever general had clung to words strictly and ignored the treaty’s sense as revealed by natural equity

Natural law thinkers like Domat turn Roman law into a law of reason, though tempered by equity, which seems to emerge from nature itself as that which, primarily, defends the spirit of the law against its harsh application.33 Domat’s discussion of equity is notable for combining a demand for equity (I.II.vii), a concern with too much equity undermining the rigor of law when rigor is appropriate (, and an acknowledgement that there can be no rule for knowing which is which (, but little concern that this situation could lead to an abuse of discretion (though see I.II.xxix).

At about the same time, there is the “direct” reception of Aristotle in England. Writers like St. German (Doctor and Student came out in 1532) and Edward Hake move right from their reading of Aristotle to their application of his teaching to the contemporary legal situation.34 Kelley sees this as an example of English legal nationalism at a curious time of legal hardening in England.35 More charitably, Barton sees the appeal of Aristotle as rationalizing an already existing institutional arrangement, namely the relation between the common law courts and the Chancery.36 Barton sees the influence of St. German as explaining why the Chancery Court became a court of “equity” (versus say, of “conscience”).37 Though common lawyers had complained about Chancery’s use of civil and canon law as early as 1415,38 it seems plausible to argue that accepting equity ostensibly directly from Aristotle allowed the English to deny the influence of these other laws.39

Marcin sees Hake’s appeal to the intent of the legislator to advance the common good as an innovation that also served to make the advent of equity more palatable because it did not rely on any external law.40 This seems to be an over-statement given the numerous direct appeals that Hake makes to the laws of God, nature, and reason.41 Nevertheless, there is merit to Marcin’s claim that the appeal of Hake’s solution to the problem of equitable discretion is only as strong as one’s belief that a law of nature or a goal to promote the common good are real constraints. To the extent that we no longer believe in a law of nature or a unitary common good, then Hake’s solution amounts to merely looking for the intent of the legislator, and the question of what constrains this equitable discretion is again before us.

Starting with the 16th century, Aristotle’s teaching on equity was readily available to legal scholars and it seems no longer appropriate to speak of a “reception” of Aristotle. That said, at the moment we are experiencing another period of heightened interest in Aristotle, as evidenced by a flowering of scholarship, including much that encourages a return to his true teaching. In reading this scholarship, it seems pretty clear that what has been lost is not so much Aristotle’s true teaching so much as knowledge of the rich tradition that exists between us and Aristotle.

For instance, several scholars have noted that Aristotle does not say that the judge using equitable principles “fills in gaps” in the law.42 This is not what the Greek says and besides it would have been somewhat absurd given the legal culture, i.e. this is not a society with a comprehensive set of laws that could even conceivably be thought of as leaving gaps. There were not many laws and just what they were was a matter of dispute; Aristotle treats laws as a form of non-technical proof because, like a contract or a witness, they are collected by the litigants and presented to a mass jury composed of laymen, and the rhetorician must do with them what he can.

What Aristotle does say is not that there are gaps, but that there is a “falling short” between the general law and the specific case, and it is equitable to apply the general law as the legislator would have intended in this case. This deference to the lawgiver seems, initially, to solve many problems involving judicial discretion – most notably, the democratic deficit.43 Yet this solution is illusory because it presumes that there is a stable thing called an intention to be discovered and a method to discover it, and that judges should be the ones to do so. Hake, as just discussed, recognizes this problem also, i.e. that of equitable judicial discretion, and gives just this answer, which he correctly attributes to Aristotle (though he is apparently only working with a Latin translation) namely that the judge guided by the legislator’s intentions is not creating new law.44 Yet, as just noted, Hake’s faith in intentions is grounded on more than the assumption that a legislator had an intention; he believed in a natural law discoverable by reason, as well as a common good discoverable by reason.45

This last point I think moves us toward an explanation for the current celebrity of Aristotle, namely the appeal of a solution to the question of equitable discretion without metaphysical baggage. As noted above, first St. Thomas and then the humanists, constructed two parallel justifications for the use of equity, namely divine law and natural law. However, Aristotle himself does not have such a justification; there is seemingly just equity as solving a general logical problem. In an age allergic to metaphysical speculation, yet eager for theories of justice, Aristotle’s approach to equity is very appealing.46 Yet before we can assess the viability of this appeal to Aristotle, we must re-consider what it is that we would be returning to. The answer is somewhat surprising.

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