Four theses: Preliminary to an appeal to equity

Stanford Law Review

Volumn 57, Issue 6, 2005, Pages 2053-2085

  Shanske, Darien ^a,b,c,d  

^a STANFORD LAW SCHOOL   (United States)

^b Columbia University ^*  (United States)

^c MCGILL UNIVERSITY   (Canada)

^d UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33645996334     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (165)

1. SECURITIES INDUSTRY CONFERENCE ON ARBITRATION, THE ARBITRATOR'S MANUAL 2 (attributing this quote to "Domke on Aristotle," though it is actually a translation of two passages from Aristotle as cited by Domke), http://www.nasd.com/web/groups/med_arb/documents/mediation_arbitration/ nasdw_009668.pdf (2004).
2. See, e.g., Robert A. Creo, Mediation 2004: The Art and the Artist, 108 PA. ST. L. REV. 1017, 1037 (2004).
3. See, e.g., Thomas O. Main, Traditional Equity and Contemporary Procedure, 78 WASH. L. REV. 429 (2003).
4. See, e.g., David E. Cole, Note, Judicial Discretion and the "Sunk Costs" Strategy of Government Agencies, 30 B.C. ENVTL. AFF. L. REV. 689 (2003).
5. See, e.g., Stephen W. DeVine, Polyconnotational Equity and the Role of Epieikeia in International Law, 24 TEX. INT'L L.J. 149 (1989).
6. See, e.g., Martha C. Nussbaum, Equity and Mercy, 22 PHIL. & PUB. AFF. 83 (1993).
7. Following Bernadette Meyler, the argument is that insofar as the Founders opted for a double dose of equity through instituting a Supreme Court that resembled the Chancery and mandating jury trials in many cases, which were also justified by appeal to their equitable discretion, equity ought not be allowed to wither. Bernadette Meyler, Substitute Chancellors: The Role of the Jury in the Contest Between Common Law and Equity 38-39 (2004) (unpublished manuscript, on file with the author). An even simpler constitutional hook is, of course, the Article III, Section 2 reference to cases in law and equity. U.S. CONST. art. III, § 2, cl. 1. True to this command, Thomas Main notes that various legal reforms, including the advent of the Federal Rules of Civil Procedure, were claimed to be merely procedural and not to have affected underlying substantive equitable rights at all. See Main, supra note 3, at 474.
8. Roscoe Pound, The Decadence of Equity, 5 COLUM. L. REV. 20, 35 (1905).
9. See, e.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628 (1985). This passage is cited with approval in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26 (1991), another leading case on arbitration and one having to do explicitly with the arbitration of employment claims in the securities industry.
10. See, e.g., United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960).
11. HOMER, ILIAD *23.537 (Richmond Lattimore trans., Univ. of Chicago Press 1951).
12. Id. *1.547.
13. Id. *1.554-.559.
14. I presume this is the passage that strikes Max Radin as well, see Max Radin, A Juster Justice, A More Lawful Law, in LEGAL ESSAYS IN TRIBUTE TO ORRIN KIP MCMURRAY 537, 540 (Max Radin & A.M. Kidd eds., 1935), though his somewhat eccentric history/discussion of epieikeia contains no citations. This is not to say that Radin's whirlwind tour through legal history does not largely comport with what I have found elsewhere.
15. 2 HERMAN DIELS & WALTHER KRANZ, DIE FRAGMENTE DER VORSOKRATIKER *82b6 (1959).
16. THOMAS HOBBES, HOBBES'S THUCYDIDES 71 (Richard Schlatter ed., 1975) (1676) (translating epieikeia in *1.76.4).
17. Id. at 198 (translating epieikeia in *3.40.2).
18. Just because the word epieikeia is not found in Aristotle's technical sense in the orators does not mean that some aspects of it are not found. As we will see again and again, it all depends on what one is looking for. For instance, John Lawless finds equity argumentation in Isaeus 1 because he finds an argument based on the intention of the testator (there is also an appeal to an earlier favorable settlement of arbitrators). JOHN MARTIN LAWLESS, LAW ARGUMENT AND EQUITY IN THE SPEECHES OF ISAEUS 115 (1991) (unpublished Ph.D. dissertation, Brown University) (on file with the Brown University Library).
19. But see HARALD MEYER-LAURIN, GESETZ UND BILLIGKEIT IM ATTISCHEN PROZESS (1965);
20. Stephen Todd, Glossary-Index to NOMOS: ESSAYS ON ATHENIAN, LAW, POLITICS, AND SOCIETY 215, 225 (Paul Cartledge et al. eds., 1990) ("It should indeed be noted that Aristotle's statement of theory receives little acknowledgment in Athenian practice: when a litigant in an extant speech pleads for the application of natural justice in his favour, he characteristically describes this as dike and not as epieikeia.").
21. Plato does not develop a theory of epieikeia as such, but he is also clearly aware of the challenge posed by the necessary generality of legal rules; see PLATO, STATESMAN *294a-c (C.J. Rowe trans., Aris & Phillips, Ltd. 1995), which analogizes between the general prescriptions of the legislator to the commands of a trainer and of a doctor who travels abroad.
22. See also PLATO, THE LAWS *876 (Trevor J. Saunders trans., Penguin Books 1970).
23. DEMOSTHENES, ORATIONS *22.40 (J.H. Vince trans., T.E. Page et al. eds., Loeb Classical Library 1935).
24. Id. *21.90.
25. Id. *21.207.
26. ARISTOTLE, NICOMACHEAN ETHICS *V.10 (Christopher Rowe trans., Oxford University Press 2002).
27. ARISTOTLE, RHETORIC *I.13, .15 (Ingram Bywater trans., Modern Library 1954).
28. ARISTOTLE, supra note 22, *V.10.
29. Id. *I.13.
30. Id. *I.15.
31. Id. *I.13.
32. Id. *I.15.
33. Id. *I.13 (author's translation).
34. Michel Humbert, The Concept of Equity in the Corpus Iuris Civilis and its Interpretation by Pothier, in AEQUITAS AND EQUITY: EQUITY IN CIVIL LAW AND MIXED JURISDICTIONS 29, 31 (Alfredo Mordechai Rabello ed., 1997);
35. Alan Watson, Equity in the Time of Cicero, in AEQUITAS AND EQUITY, supra, at 23, 24.
36. Helmut Coing, Zum Einfluss der Philosophie der Aristoteles auf die Entwicklung des Roemischen Rechts, 69 ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE 24, 47 (1952). And so Coing concludes, "There is no doubt that in the later period and in the Corpus Juris a full reception of the Aequitas-doctrine had taken place." Id. at 44 (author's translation).
37. Peter Stein, Equitable Principles in Roman Law, in EQUITY IN THE WORLD'S LEGAL SYSTEMS: A COMPARATIVE STUDY 75, 77 (Ralph A. Newman ed., 1973).
38. Karl-Heinz Ziegler, Aequitas in Roman International Law, in AEQUITAS AND EQUITY, supra note 30, at 48, 54-57.
39. CICERO, DE OFFICIIS *1.10.33 (Walter Miller trans., Harvard University Press 1938).
40. W.W. BUCKLAND & PETER STEIN, A TEXT-BOOK OF ROMAN LAW FROM AUGUSTUS TO JUSTINIAN 55 (3d ed. 1966). This is in fact really the tip of the iceberg, since there are phrases besides aequitas that have plausibly been associated with epieikeia/equity - for example, bonum et aequum by Budeaus.
41. See J.L. Barton, Equity in the Medieval Common Law, in EQUITY IN THE WORLD'S LEGAL SYSTEMS, supra note 32, at 139, 153.
42. But see Fritz Pringsheim, Bonum at Aequum, 52 ZEITSCHRIFT DER SAVIGNY-STIFTUNG FÜR RECHTSGESCHICHTE 78 (1932), who assumes that the relevant sense of equity is mildness in opposition to strict law. For example, he states, "Therein [a passage attributed to Celsus] lies no reference to equity, but to a sharpening of the art of interpretation . . . ." Id. at 84-85.
43. This passage demonstrates an acknowledgement of one aspect of equity (as relates to interpretation), while rejecting another. See generally GUIDO KISCH, ERASMUS UND DIE JURISPRUDENZ SEINER ZEIT 26-35 (1960).
44. Stein, supra note 32, at 78, 87. Note that Stein distinguishes between the application of these equitable principles in the classical period and equity in the postclassical period, which consisted in relaxation of the results arrived at through application of these equitable principles. Id. at 92.
45. NORBERT HORN, AEQUITAS IN DEN LEHREN DES BALDUS 47 (1968).
46. See id.; infra Part IV.
47. Under Goerner's interpretation, St. Thomas distinguishes between natural right (jus naturale) and natural law (lex naturalis). E.A. Goerner, Thomistic Natural Right: The Good Man's View of Thomistic Natural Law, 11 POL. THEORY 393, 393 (1983). This key distinction, which we will encounter again later, is between lawfulness as an internal virtue, ultimately associated with epieikeia by Aquinas, according to Goerner, id. at 410, in contrast to merely following the natural law, which is imposed on humans from without on account of human weakness, id. at 395.
48. See generally JOHN FINNIS, AQUINAS 266-74 (1998).
49. Raymond B. Marcin, Epieikeia; Equitable Lawmaking in the Construction of Statutes, 10 CONN. L. REV. 377, 391 (1977).
50. Stephen W. DeVine, The Concept of Epieikeia in the Chancellor of England's Enforcement of the Feoffment to Uses Before 1535, 21 U. BRIT. COLUM. L. REV. 323, 331-32 (1987). DeVine does not claim that the actual word aequitas plays a role in Gratian or that this notion of relaxation is central to the Decretum, and, following Peter Landau, this is because it was not. However, almost immediately thereafter, aequitas emerges as the characteristic that distinguishes canon law from civil law.
51. Peter Landau, "Aequitas" in the "Corpus Iuris Canonici," in AEQUITAS AND EQUITY, supra note 30, at 128, 132-39.
52. See Marcin, supra note 41, at 389 n.58.
53. The humanists did not necessarily give equity a technical sense, at least at first. Here is Kisch: "Erasmus had surely not thought of equity as a method of interpretation in the sense of Stroux . . . . Under 'aequitas' he only seems to understand justice in its entirely general meaning ('substantive justice') to which injustice ('substantive injustice') is opposed." KISCH, supra note 35, at 62-63 (author's translation); see also id. at 159. Interestingly, following Jan Schröder, there is also a tension between equity as an alternative source of substantive law and natural law. This is to say that the more complete a system of natural law becomes, the more superfluous equity becomes, though only equity as an alternative source of law.
54. JAN SCHRÖDER, RECHT ALS WISSENSCHAFT 15-17 (2001). For further discussion of the different senses of equity, see infra Part IV.
55. Guido Kisch, Humanistic Jurisprudence, 8 STUD. RENAISSANCE 71, 84-85 (1961).
56. Donald R. Kelley, Civil Science in the Renaissance: Jurisprudence Italian Style, 22 HIST. J. 777, 788 (1979).
57. DeVine, supra note 5, at 233 (translating H. GROTIUS, ARGUMENTI THEOLOGICI, IURIDICI, POLITICI *III.iv.6, at 120-21 (Isaac Gruter ed., Aalen 1980) (1652).
58. Id. at 235 (translating H. Grotius, De Aequitate, in DE JURE BELLI AC PACIS 482, 483 (Jean Baybeyrac ed., A Leide 1759) (1625)).
59. 1 JEAN DOMAT, THE CIVIL LAW IN ITS NATURAL ORDER *I.II.v-viii (London, J. Bettenham 1722);
60. see also JAMES Q. WHITMAN, THE LEGACY OF ROMAN LAW IN THE GERMAN ROMANTIC ERA 46-50 (1990).
61. DOMAT, supra note 49, *I.II.vii.
62. Id. *I.II.vi.
63. Id.
64. But see id. *I.II.xxix.
65. Donald R. Kelley, History, English Law, and the Renaissance, 65 PAST & PRESENT 24, 28 (1974).
66. Id. at 24-25, 30.
67. Barton, supra note 35, at 154.
68. On the powerful influence of St. German, see Franklin Le Van Baumer, Christopher St. German, 42 AM. HIST. REV. 631, 631 (1937) ("[St. German's] Doctor and Student served as the basic handbook for law students up to the time of Blackstone . . . ."). Interestingly, St. German was trained in civil law as well as common law, id. at 631-32, and his metaphysics was essentially Thomistic, id. at 639, including his association of equity with God's law, id. at 642.
69. Barton, supra note 35, at 146.
70. Kelley, supra note 54, at 35.
71. Marcin, supra note 41, at 396-97.
72. Consider the following passage: To conclude, I [Hake] take the sayeng of Justice Yelverton in 8 E. 4 to belong to this our present purpose. The sayeng is this. In matters dowbtfull (sayeth hee), wee must doe even as the sophonists and civilians doe, who, when a newe case cometh before them wherein they had no lawe before (meaning, no doubte, as in the verball sense of the lawe) they resorte thereuppon to the lawe of Nature which is reason and the grownde of all lawes, and therein owte of that that is moste for the Commonwealthe they make a lawe; quod non negatur. EDWARD HAKE, EPIEIKEIA: A DIALOGUE ON EQUITY IN THREE PARTS 108 (D.E.C. Yale ed., 1953) (1598-1603); see also id. at 13, 16, 117. This passage is especially remarkable because it combines the appeal to the law of nature with the common good and even seems to have kind words to say for the civilians - and all from an actual opinion.
73. Roger A. Shiner, Aristotle's Theory of Equity, 27 LOY. L.A. L. REV. 1245 (1994);
74. Eric G. Zahnd, The Application of Universal Laws to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law, LAW & CONTEMP. PROBS., Winter 1996, at 263.
75. Zahnd, supra note 62, at 292-93. It should be remembered that in the Ethics Aristotle seems to primarily envision the assembly passing specific decrees to correct for the generality of the laws.
76. HAKE, supra note 61, at 27-28.
77. This critique does not really apply to Shiner, who is clear that Aristotle's teaching on equity requires that it be applied by a man of practical wisdom (phronesis), a technical term in Aristotle, and one that implies a way of life very different from "liberal individualist visions of social life." Shiner, supra note 62, at 1264. Though Zahnd mentions phronesis, this does not prevent him from looking to Aristotle for a solution to the problem of equitable discretion in a liberal democracy. Zahnd, supra note 62, at 267-68, 290-91.
78. See generally Marianne Constable, Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law, 19 LAW & SOC. INQUIRY 551 (1994).
79. On Dworkin's thin metaphysics, see Roger A. Shiner, The Metaphysics of Taking Rights Seriously, 12 PHILOSOPHIA 223 (1983).
80. For similar conclusions on equity as a personal virtue, see Shiner, supra note 62, and MEYER-LAURIN, supra note 18, at 49-52. But see LAWLESS, supra note 18, at 82-109, who correctly collects most of the reasons that Aristotle's discussion would have been relevant to contemporary legal practice - for instance, because of how few laws there were at Athens - though he does not connect the legal import of epieikeia to the agonistic nature of Athenian society. For a discussion of these values, including the way in which Aristotle's Rhetoric presents them, see generally DAVID COHEN, LAW, VIOLENCE, AND COMMUNITY IN CLASSICAL ATHENS 61-118 (1995).
81. C. Carey, Nomos in Attic Rhetoric and Oratory, 116 J. HELLENIC STUD. 33, 36-37 (1996).
82. Id. at 41-42.
83. COHEN, supra note 67, at 117-18.
84. COHEN, supra note 67, at 90-101.
85. Noah Feldman offers a fourfold division for thinking about equity that clearly relates to the argument of this Part: rectification v. interpretation, and authorized v. unauthorized. In his scheme, thinkers who see equity as outside of the law see it as rectifying the law. Since equity was itself extralegal, these thinkers also tended to believe that the outside body had independent authorization to apply equity, say from God. On the other side, there is a tradition of equity as the necessary interpretation of a general law and thus requiring no outside authorization. Noah Feldman, Equity in History (Nov. 14, 2002) (unpublished manuscript), available at http://www.law.nyu.edu/clppt/program2002/readings/feldman/feldman.rtf. Clearly I am in broad agreement with Feldman, but I think that his division is not fine-grained enough. For instance, equity has many more meanings than rectification and interpretation, and the question of authorization is both a matter of politics and metaphysics. Further, Feldman's matrix, with its elegance and considerable explanatory power, does exactly what I argue cannot be done and is best not even intimated, namely reify the rich tradition of equity into a formula.
86. See, e.g., LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS 200 (1953);
87. LUDWIG WITTGENSTEIN, ZETTEL § 197 (1967).
88. See Main, supra note 3, at 459-64.
89. DeVine, supra note 42, at 333.
90. On the role of legal expertise in Delaware's domination of the market for corporate law, see generally Michael Klausner, Corporations, Corporate Law, and Networks of Contracts, 81 VA. L. REV. 757, 841-47 (1995).
91. United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960).
92. For instance, there is the famous quote from Coke: "[J]urors are chancellors." ROSCOE POUND, AN INTRODUCTION TO THE PHILOSOPHY OF LAW 133 (1922).
93. See Judge Jerome Frank's fascinating summary of the history in Usatorre v. The Victoria, 172 F.2d 434, 439-41 nn.8-16 (2d Cir. 1949); see also Judge Richard Posner's acceptance of the tradition in Friedrich v. City of Chicago, 888 F.2d 511, 514 (7th Cir. 1989).
94. On Baldus, see HORN, supra note 37, at 27-32; on Hake, see HAKE, supra note 61, at 88, 90.
95. See infra Part IV.
96. Ziegler, supra note 33, at 54; see also, e.g., CODE NAPOLEON arts. 1134-1135 (1808). Importantly, the Code Civil was heavily influenced by the work of Domat and Pothier, both of whom gave a prominent role to natural equity. James Gordley, Myths of the French Civil Code, 42 AM. J. COMP. L. 459, 460 (1994).
97. See McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819) (famously insisting that interpreting a constitution is different from interpreting a code).
98. REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN FOUNDATIONS OF THE CIVILIAN TRADITION 528-30 (1990). For international courts as operating ex aequo et bono, per section 38(2) of the ICJ Statute, see DeVine, supra note 5, at 151 n.5. Also, for Baldus, see HORN, supra note 37, at 156.
99. ZIMMERMAN, supra note 84, at 528-30.
100. For a thorough, though obviously dated, discussion of the connection between arbitration and law, see E.J. Cohn, Commercial Arbitration and the Rules of Law: A Comparative Study, 4 U. TORONTO L.J. 1 (1941). Cohn makes the argument that up until recently (from his perspective), the relation of arbitration and law had the following structure: to the extent an arbitrator's decisions were as binding as that of a regular judge, the arbitrator was obligated to decide based on the law. Id. at 8-9.
101. ARISTOTLE, supra note 23, *I.15; see infra Part IV.
102. Wolff states: "Nations ought to observe equity in making treaties. For by nature nations are bound to perform the duties of humanity for each other, and every nation ought to have a fixed and lasting desire to promote the happiness of other nations." CHRISTIAN WOLFF, JUS GENTIUM METHODO SCIENTIFICA PERTRACTATUM § 409 (Joseph H. Drake trans., 1964) (1764). See also id. § 375, where Wolff claims that the laws of nature provide rules for the interpretation of treaties. For Baldus and aequitas and the ius gentium, see HORN, supra note 37, at 72.
103. This is roughly what DeVine argues in connection with urging a return to what he calls "descriptive epieikeia," which is a methodological and procedural norm loosely based on epieikeia historically. See DeVine, supra note 5, at 252-59.
104. See, e.g., HORN, supra note 37, at 14; Marcin, supra note 41, at 391.
105. ARISTOTLE, supra note 23, *I.15.
106. Id. *I.13.
107. Delba Winthrop, Aristotle and Theories of Justice, 72 AM. POL. SCI. REV. 1201, 1207 (1978).
108. ARISTOTLE, supra note 23, *I.2.
109. Id. *I.13. Alas, it should be noted that discounting *I.15 in favor of *I.13 hardly solves the problem, since at Rhetoric *I.10 we have yet another division. See Carey, supra note 68, at 34. Gadamer's approach to natural law in Aristotle, though it does not address this categorization problem, suggests another approach. Gadamer claims (with sparse references) that Aristotle does believe in an unchangeable natural law, but as a critical ideal. No particular law ought to be reified as natural and hence inviolable. Rather, the belief in a natural law serves as a spur to the conversation about whether a law is equitable, and hence, perhaps, Aristotle's relative lack of concern with a stable classification system, but considerable concern about finding ways of asking whether a law measures up.
110. HANS-GEORG GADAMER, TRUTH AND METHOD 318-20 (Joel Weinsheimer & Donald G. Marshall trans., 2d ed. 1989). One major additional complication here is that Aristotle did not mean our (complicated) notion of "nature" when he uses the term phusis, a fact Heidegger returns to again and again.
111. See Martin Heidegger, On the Essence and Concept of Phusis in Aristotle's Physics B, I, in PATHMARKS 183 (Thomas Sheehan trans., William McNeill ed., 1998). Speaking roughly, phusis for Aristotle delineates the realm of beings that grow and are self-moving from those that are made (like a table or like the whole universe if one believes in a creator god). Id. at 228. What such a law of phusis amounts to, if it is even comprehensible at all to us postmoderns, is clearly beyond the scope of this Note.
112. See HORN, supra note 37, at 13. In connection with Aristotle, see the earlier discussion in supra Part III.
113. See supra Part II; see also HORN, supra note 37, at 97.
114. Nussbaum, supra note 6, at 94.
115. Id. at 97 (citing ARISTOTLE, NICOMACHEAN ETHICS 1126a4-8).
116. For the development of this argument, see Anton-Hermann Chroust, Aristotle's Conception of "Equity," 18 NOTRE DAME L. REV. 119 (1942-1943). For Baldus, see HORN, supra note 37, at 95. For examples from contemporary international disputes, see DeVine, supra note 5.
117. See supra Part III.
118. On the Roman emperors, see Landau, supra note 42, at 129 (citing JUSTINIAN, DIGESTA 4.1.7), and for the papal challenge, see id. at 135.
119. Charles C. Bayley, Pivotal Concepts in the Political Philosophy of William of Ockham, 10 J. HIST. IDEAS 199 (1949).
120. Goerner, supra note 3 9, at 411-15.
121. R.C. VAN CAENEGEM, AN HISTORICAL INTRODUCTION TO PRIVATE LAW 126 (1992).
122. Lorna Hutson, Not the King's Two Bodies, in RHETORIC AND LAW IN EARLY MODERN EUROPE 166, 178 (Victoria Kahn & Lorna Hutson eds., 2001) (construing Cromartie). Hake also provides ample support for this argument. See, e.g., HAKE, supra note 61, at 78-85.
123. Paul Jackson identifies twelve maxims of equity as emerging from his study of textbooks on equity, which he does not present as necessarily exclusive or necessarily inherent to equity in contrast with law. I list them here because it is interesting to note how these supposed maxims of equity line up with the various independent aspects of equity discussed above: 1. Equity will not suffer a wrong to be without a remedy. 2. Equity follows the law. 3. Where there is equal equity, the law shall prevail. 4. Where the equities are equal, the first in time shall prevail. 5. He who seeks equity must do equity. 6. He who comes into equity must come with clean hands. 7. Delay defeats equity. 8. Equality is equity. 9. Equity looks to the intent rather than to the form. 10. Equity looks on that as done which ought to be done. 11. Equity imputes an intention to fulfill an obligation. 12. Equity acts in personam. Paul Jackson, The Maxims of Equity Revisited, in EQUITY AND CONTEMPORARY LEGAL DEVELOPMENTS 72, 74 (Stephen Goldstein ed., 1990).
124. ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 177-78 (1966). See also Radin, supra note 14, at 560, and DeVine, supra note 42, which provide an account of the rise of the Chancellor's jurisdiction in response to the common law's inability to enforce the intentions of feoffors. In this curious situation, the feoffors granted their land, by law, to feoffees to be held for the benefit of themselves or some others in order to evade feudal incidents. Trouble arose when feoffees, who owned the land in fee simple, refused to follow the feoffors' instructions, and for this there was no remedy at law.
125. See Pound, supra note 8.
126. Max Radin, The Chancellor's Foot, 49 HARV. L. REV. 44, 65 (1935).
127. HAKE, supra note 61, at 5. This concern goes both ways. For example, Maitland notes that "[Blackstone] is concerned to show that the so-called equity of the Court of Chancery is in reality law . . . ." F.W. MAITLAND, EQUITY AND THE FORMS OF ACTION 12 (A.M. Chaytor & W.J. Whittaker eds., 1920).
128. GADAMER, supra note 95, at 318.
129. Id. Arguably the distinction is not that great since the expert judge can also be understood as practicing her craft when appealing to equity, namely through using a different tool, but the right one for the job, like the flexible ruler of the Lesbian builders, rather than a rigid one.
130. See infra Part V.B (discussing Aristotle on friendship). To prioritize friendship over justice is to prioritize a uniquely human capacity.
131. See supra Part IV.
132. But John Rawls explicitly sees himself as pursuing a Kantian project, just as Charles Taylor sees himself as pursuing a Hegelian one.
133. IMMANUEL KANT, METAPHYSICAL ELEMENTS OF JUSTICE 39-41 (John Ladd trans., Hackett 2d ed. 1999) (1797).
134. ALLEN D. ROSEN, KANT'S THEORY OF JUSTICE 106-07 (1993);
135. Allen W. Wood, Editorial Notes to G.W.F. HEGEL, ELEMENTS OF THE PHILOSOPHY OF RIGHT 448 (Allen W. Wood ed., H.B. Nisbet trans., Cambridge University Press 1991) (1821).
136. KANT, supra note 117, at 40.
137. ROSEN, supra note 118, at 109-11.
138. KANT, supra note 117, at 40.
139. Interview with Allen Wood, Professor of Philosophy, Stanford University, in Stanford, Cal. (Apr. 2004).
140. HEGEL, supra note 118, § 223.
141. Id. § 222.
142. Strikingly, Hegel's language in this passage suggests that preliminary arbitration should be required, which is in tension with the whole justification for arbitration, namely that the litigants are entitled to just process, every step of it. Thinking through this tension is beyond the scope of this Note; one possible solution is that Hegel is advocating a procedure where arbitration can always be compelled once a finding has been reached that the ordinary procedure will produce injustice. I hope to explore this further, especially in light of contemporary legal practice and reforms, in a future paper.
143. HEGEL, supra note 118, § 223. There is actually some ambiguity in the text; resolving this ambiguity is another task for a future paper.
144. See ALLEN W. WOOD, HEGEL'S ETHICAL THOUGHT 144-73 (1990), for a general discussion of Hegel's critique of Kant.
145. ARISTOTLE, supra note 23, *IX.6, at * 1167b2.
146. Id. *IX.6, at *1167b5.
147. Id. *IX.6, at *1167b12.
148. This is a bit of an understatement insofar as in Thucydides the Athenians describe themselves collectively as having epieikeia in contrast to other cities, THUCYDIDES, HISTORY OF THE PELOPONNESIAN WAR *1.76.4 (Rex Warner trans., Penguin Books 1972), and it is precisely this epieikeia that the demagogue Cleon would like the Athenians not to demonstrate in connection with another city, i.e., he wants the other city massacred for revolting from Athens, id. *3.40.2. In a similar way, it is common to associate all of Athens with its great elite tragic protagonists, like Oedipus or Ajax. And thus in a direct participatory (and imperial) democracy there was a substantive sense in which all citizens could be called upon to engage in epieikeia.
149. Max Radin, The Theory of Judicial Decision: Or How Judges Think, 11 A.B.A. J. 359-60 (1925).
150. Winthrop, supra note 93, at 1214.
151. Id.
152. Philippe Nonet, Judgment, 48 VAND. L. REV. 987, 994-95 (1995).
153. Winthrop, supra note 93, at 1215.
154. KATHY EDEN, POETIC AND LEGAL FICTION IN THE ARISTOTELIAN TRADITION 58-59 (1986).
155. This truth seems especially apparent when one looks at Rhetoric *II.8, where Aristotle discusses how to arouse pity in language that explicitly conjures up his theory of tragedy, but note that this is another book and amidst a systematic discussion of the emotions that one can develop in the audience. I would suggest reading the two passages together to understand Aristotle as maintaining that one may well want to stoke the audience's pity without also arguing to that audience that they should decide on the basis of pity.
156. Nussbaum, supra note 6, at 97.
157. One might also think of this as the communal sense of what is proper among friends.
158. Nussbaum, supra note 6, at 97.
159. Id. at 95.
160. Id. at 98-99.
161. Id. at 100.
162. Id. at 101.
163. Id. at 114 (citing RICHARD A. POSNER, LAW & LITERATURE 108 (1998)). Nussbaum says she will return to Judge Posner's critique, though I do not see how she does, except to agree with him that discretion should be limited when "the whole complex history of the life in question" and the "inclination to [learn it] in a sympathetic manner" is unavailable. Id. at 117. This off-hand concession would seem to assure that this appeal to the equity tradition has no bite at all, which Nussbaum seems to recognize in limiting her analysis to the mitigation phase of death penalty cases. Id. at 116. This is the story of her article - Nussbaum does not really say anything false, that Aristotle or the Stoics espoused mercy, or that her holistic narrative approach is practicable; but she almost says all of these things, and in fact I have heard a respected scholar (at a conference) claim that Nussbaum said the equity tradition mandated leniency in sentencing.
164. Interestingly, Nussbaum notes that Seneca has a political agenda because he would like the emperor to show mercy. Id. at 104-05.
165. I actually am inclined to believe that equity as mercy is a dead end, i.e., mercy is given content by Christianity and cannot be secularized. It seems to me that the problem Eden and Nussbaum are trying to address is not so much the absence of mercy, but of justice, though not according to the dictates of the current positive law. The three strikes law is not unmerciful, it is unjust. Again, if one is inclined to follow Hegel's metaphysics of punishment, then one can pinpoint the injustice in the disproportionality. Perhaps Aristotle's equitable man would simply label it "base."