The paradox of equity

Cambridge Law Journal

Volumn 55, Issue 3, 1996, Pages 456-469

  Tasioulas, John ^a  

^a UNIVERSITY OF GLASGOW   (United Kingdom)

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[No Author keywords available]

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EID: 79954372957     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300100467     Document Type: Article

References (32)

1. Martha C. Nussbaum, “Equity and Mercy” (1993) 22 Philosophy and Public Affairs 83. All otherwise unspecified page references are to this article.
2. Indeed, taking equity seriously would be one way of elaborating Hart's remark that even when legal rules provide no determinate guidance judges do not enjoy a completely unfettered discretion, but are instead subject to “a wide variety of individual and social interests, social and political aims, and standards of morality and justice”. H.L.A. Hart, “Problems ofthe Philosophy of Law”, in Essays in Jurisprudence and Philosophy (Oxford, 1983), p. 107. Note, however, that the equity tradition—at least as classically formulated in Aristotle's description of equity (epieikeia) as “a correction of law where it is defective owing to its universality”—does not (like much of contemporary legal philosophy) confine its attention to judicial discretion attributable to “gaps” in the law, but encompasses also the notion of a remedial discretion where the generality of legal rules yields an injustice in the circumstances of a particular case.
3. See Aristotle, TAe Nicomachean Ethics ll37b26–27, trans. W.D.Ross (Oxford, 1980), p. 133. For an elaboration of this last point
4. see Roger A. Shiner, “Aristotle's Theory of Equity”, in S. Panagiotou (ed.), Justice, Law and Method in Plato and Aristotle (Edmoaton, 1987), pp. 177–179.
5. I assume here that an ethically acceptable standard of conduct must be such that compliance with it does not outrun or excessively tax ordinary human capacities. See James Griffin, “Moral Law, Positive Law”, in J. Tasioulas (ed.). Law, Values and Social Practices (Aldershot, forthcoming). It may be, however, that Nussbaum's reference to the “tough standards of justice” is to be understood in the specific context of her discussion of the archaic conception of dike (pp. 88–92).
6. Therefore, it is hardly surprising on this account that a major reason for the widespread condemnation of the declaratory power is its clash with the nulla poena sine lege principle. For a recent example of such criticism, see Ian D. Willock, “The Declaratory Power—Still Indefensible” (1996) Juridical Review 97, at pp. 103, 105–108.
7. Here I follow Joseph Raz, “The Rule of Law and its Virtue”, in The Authority of Law: Essays on Law and Morality (Oxford, 1979), pp. 219–223.
8. It is not incongruous to relate “equity” in the broad Aristotelian sense to “equity” conceived as those doctrines, remedies etc. that originated in the Court of Chancery. This is because, by at least the sixteenth century, the former was invoked as providing one of the main intellectual justifications for the latter. See e.g. J.L. Barton, “Equity in the Medieval Common Law”, in R.A. Newman (ed.). Equity in the World's Legal Systems: A Comparative Study (Brussels, 1973), pp. 151–155. Pp. 118–119.
9. See J.R. Lucas, The Principles of Politics (Oxford, 1966), pp. 139–143, 212–222.
10. See Aristotle, Rhetoric 1354a31-bll, trans. W. Rhys Roberts in J. Barnes (ed.), The Complete Works of Aristotle (Princeton, 1984), pp. 2152–2153. P. 109.
11. St. Thomas Aquinas, Summa Theologiae vol. 28 ed. T. Gilby O.P. (London, 1966), IaIIae.96.6 see also 97.4.
12. Aristotle, Nicomachean Ethics 1137b22. Bernard Yack has argued that passages such as this invalidate the interpretation of Aristotelian equity as involving an appeal to higher “natural law principles” independent of the positive law, see The Problems of a Political Animal: Community. Justice, and Conflict in Aristotelian Political Thought (Berkeley, 1993), pp. 193–194.
13. See also Hans-Georg Gadamer, Truth and Method, 2nd. rev. edn. trans. J. Weinsheimer and D.G. Marshall (London, 1989), pp. 318–320.
14. This sort of point would be contested not only by moral sceptics, but also by those who think that the possibility or otherwise of objective ethical judgments makes no difference to the legitimacy of value Judgments in legal adjudication, e.g. Jeremy Waldron, “The Irrelevance of Moral Objectivity”, in R.P. George (ed.). Natural Law Theory: Contemporary Essays (Oxford, 1992), pp. 158–187.
15. Aquinas, Summa Theologiae, lallae.97.4.
16. See e.g. Anthony Mason, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World” (1994) 110 L.Q.R. 238, 245.
17. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven, 1954), p. 70.
18. Stephen Toulmin, “Equity and Principles” (1982) 20 Osgoode Hall Law Journal 1, 11–12.
19. Osgoode Hall Law Journal, p. 12.
20. Roscoe Pound, “The Decadence of Equity” (1905) 5 Columbia Law Review 5, 25.
21. The tendency towards systematisation and consequent decadence is also noted by Maine with respect to both English and Roman equity, see Ancient Law, new edn. (London, 1930), pp. 73–75.
22. See also Hilary Putnam, “Are Moral and Legal Values Made or Discovered?” (1995) 1 Legal Theory 5, 7.
23. H.L.A. Hart, The Concept of Law, 2nd. edn. (Oxford, 1994), p. 205.
24. See e.g. Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, 1990), pp. 22–24.
25. Nussbaum further elaborates and defends the thesis that “thinking about narrative literature [has] the potential to make a contribution to the law in particular, to public reasoning generally”, in Poetic Justice: The Literary Imagination and Public Life (Boston, 1995), p. xv.
26. Aristotle, Nicomachean Ethics 1143al9–20 and Rhetoric 1374b2–10.
27. See, e.g. Richard Posner, The Problems of Jurisprudence (Cambridge, Mass., 1990), pp. 393–413.
28. Note Posner's assessment that “Literature can… illuminate the perennial issues of jurisprudence that arise from the tension between law and equity (and more broadly, between formal and substantive justice)” The Problems of Jurisprudence. p. 395, which he combines with trenchant criticisms of Robin West's contributions to the law and literature movement.
29. According to Posner, in “urging judges to discard the conventional principles of legality”. West “confuses the judicial and Uterary roles”, The Problems of Jurisprudence, p. 413. My claim is not that Nussbaum rejects such principles, but overlooks how they mesh with equity to produce the asymmetry she rightly notices.
30. Robert Cover, “Violence and the Word”, in M. Minow, M. Ryan and A. Sarat (eds.). Narrative, Violence, and the Law: The Essays of Robert Cover (Ann Arbor, 1992), p. 210.
31. Nussbaum, Poetic Justice, p. 82.
32. Poetic Justice, p. 118.