As per Newman (2008), the earliest recognition of equity as a component of law was already in the Book of Leviticus by commanding to "judge thy neighbour in righteousness" (Newman 2008)[1]. Furthermore, equity is always connected with justice. This means, in simple words that the equity can be referred to as fairness, body of rules or justice and the opposite of the fair action is injustice.
Newman (2008) in addition clarifies that
(…) sometimes the principles of equity were introduced directly into the legal norms, as occurred in Germanic, Hungarian and Scandinavian law. Sometimes, as in Roman law, they were applied as a separate system in the same court in which the rules of strict law were applied. [In other countries law and equity were administered in separate courts, as occurred in England in the fourteenth century] (Newman 2008).[2]
Matter of equity and equitable approach has been discussed not only by legislators over the time, but it is frequently mentioned from the view of jurisprudence. Furthermore, it caused lengthy discussion of philosophical scholars where, as explained by Shiner (1994)[3] the issues of the nature of equity and of the existence of judicial discretion in hard cases are quite different. Equity and equitable judgment are also emphasised in significant detail in Aristotle’s work where he looked at the very concept of nature of equity.
Platt (2009) explains
(…) equity is movable concept informed from many directions. Aristotle’s definition of equity was often cited in the Renaissance and provides an important touchstone for any discussion of early modern equity. Book 5 of his Nicomachean Ethics leaves little doubt that simply defining equity requires entrance into the realm of paradox (Platt 2009)[4].
It seems that the role of equity is to help judges to depart from rigid legal rules in order to avoid potential injustice in case these rules and principles would be applied and, subsequently, cause unfairness. Beever (2004) further observes that this way equity permits judges to depart from legal principle in order to promote justice (Beever 2004)[5].
Cotterrell (1989) in his work ‘The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy’, commented that society is changing progressively and he believes this social change requires that law will follow the change and respond to it adequately. He goes onto state that fictions, equity and legislation, emerging successively in history, reinforce each other as remedial devices to ensure that law follows social progress (Cotterrell 1989)[6]. In short, it is possible to say that equity adapts the law to the requirements of the particular case (Solum 1994)[7].
However, the conflict between law and equity starts when we are considering the relation between rule and discretion in adjudication process. As Solum (1994) explains, the practice of equity can be apprehended as an exercise of discretion by judges (Solum 1994 in Shapiro 1994)[8]. This means that there is a difference between judicial discretion and equitable judgment and therefore adjudication is confronted with the question whether judges have unrestrainedly strong discretion or there are gaps in the actual legal process. The aforementioned serves as a base for the Hart and Dworkin’s debate, where even in the area of modern law, as Shiner (1994) explains that is extensively developed, followers of Dworkin and Hart will debate whether courts have robust discretion or whether they are bound by legal principles (Shiner 1994)[9]. There seem to be open conflict where(…) the rule of law seem to require judges to follow the rules, whereas the practice of equity seems to permit departure from the rules (Solum 1994 in Shapiro 1994)[10].
Shapiro (1994) explains that as Dworkin argued the positivist thesis can seem plausible only if we focus on simple legal rules and statutes. He continues to explain that during the adjudication process and when deciding cases by appeal the courts are taking into consideration not only legal principles but also ethics that would represent their own legal principles and legal cautiousness.
He argued that legal discretion could not be counted on to fill in the gaps where the law is silent or ambiguous; nor could it be reduced to some higher-order system of legal rules. (Shapiro 1994).[11]
On the other hand,
Hart tries to solve the problem of maintaining the centrality of rules in his concept of law by identifying two components of the – a ‘core’ of settled meaning and a ‘penumbra’ of uncertainty. In penumbral cases ‘it is clear that the rule making authority must exercise a discretion’ (Cotterrell 1989: 105)[12].
And as it is apparent,
(…) equity was meant to solve and reconfigure legal problems could because of its paradoxical position between strict justice and mercy create new paradoxes and contradictions instead (Platt 2009) [13]
The aforementioned confirms that it is problematic to clearly define and interpret equity and equitable justice. This is because it helps judges to realise unconditional justice and for that reason depart from the legal justice (Beever 2004)[14]. Platt (2009) concluded that the difficulty in interpreting equity beyond the law lies in the fact that the courts will assume too much interpretative authority (Platt 2009)[15].
Another part of the complexity of equity was what Stuart Prall (1964) has called a confusion of definitions and that there is the timeless question of whether equity is a principle of justice transcendent and distinct from the law (legal justice) or whether it is of the same substance as the positive law but express the spirit rather than the latter of that particular law (Platt 2009)[16].
It is reasonable to conclude that due to developments in society and reformist humanisation of social institutions, the law is becoming more concerned with the problems arising from the inelastic application of legal rules. It becomes natural to ask the question whether legal justice is the justice that should motivate judges and if it is not then what is it (Beever 2004)[17]? Nevertheless, while asking this question, it is normal to likewise consider if the equitable judgment is the one which is filling the gaps in the firm structure of law rules. Solum (1994) concludes that if we would apply Hart’s approach to the problem then an extreme realist could contend that all decisions are discretionary (Solum 1994 in Shapiro 1994)[18]. In conclusion to this short discourse, it appears natural to complete it with Gardner’s (2000) observation where he insists that equity permits judges to depart from law in order to realize justice: equity is justice’s rebellion against law (Gardner 2000 in Beever 2004).[19]This view is in line with Martin’s (1993) remark that
(…) developed systems of law have often been assisted by the introduction of a discretionary power to do justice as rules formulated to deal with particular situations may subsequently work unfairly as society develops (Martin 1993 in Shiner 1994)[20].
Bibliography
Beever, A. (2004) Aristotle on equity, law and justice. In: Legal Theory, Volume 10, Issue 01, http://dx.doi.org/10.1017/S1352325204000163
Cotterrell, R.B.M (1989) The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths
Duddington, J. (2009) Equity and Trusts. Harlow: Pearson Education Ltd
Falcón y Tella, M. J. (2008) Equity and Law.Leiden: Koninklijke Brill.
Gardner, J. (2000): The Virtue of Justice and the Character of Law. In: Current Legal Problems, Vol. 53, No. 1
Malanczuk, P. and Barton Akehurst, M. (1997) Akehurst's Modern Introduction to International Law. London: Routledge
Martin, J. (1993) Hanbury & Martin: Modern Equity. London: Thomson Reuters.
Mattei, U. (1997) Comparative Law and Economics. Michigan: The University of Michigan Press
Moffat, G. et al (2005) Trusts Law: Text and Materials. Cambridge: Cambridge University Press
Newman, R. A. (2008) Equity in comparative law. International & Comparative Law Quarterly, Volume 17, Issue 04, http://dx.doi.org/10.1093/iclqaj/17.4.807
Platt, P.G. (2009) Shakespeare and the Culture of Paradox. Farnham: Ashgate Publishing.
Plucknett, T.F. T. (2001) A Concise History of the Common Law. New Jersey: The Lawbook Exchange
Prall, S.E. (1964) The development if Equity in Tudor England. In: The American Journal of Legal history, Vol. 8, No. 1, Temple University, http://www.jstor.org/stable/844159
Raphael , D. D. (1946) Equality and equity. Philosophy, Volume 21, Issue 79, http://dx.doi.org/10.1017/S0031819100005301
Sachse, W. L. (1975) Lord Somers: A Political Portrait. Manchester: Manchester University Press
Schauer, F.F. (2009) Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Harvard: Harvard College
Shapiro, I. (1994) Equity and the Rule of Law in The Rule of Law: Nomos XXXVI. New York: New York University Press
Shiner, R.A. (1994) Aristotle's Theory of Equity, 27 Loy. Los Angeles: Los Angeles Law Review http://digitalcommons.lmu.edu/llr/vol27/iss4/
Trench Macnair, M. R. (1999) The Law of Proof in Early Modern Equity. Berlin: Duncker & Humblot
[1] Newman, R. A. (2008): Equity in comparative law. International & Comparative Law Quarterly, Volume 17,Issue 04, p. 808
[2] Ibid, p. 809
[3] Shiner, R.A. (1994): Aristotle's Theory of Equity, 27 Loy. Los Angeles: Los Angeles Law Review
[4] Platt, P.G. (2009): Shakespeare and the Culture of Paradox. Farnham: Ashgate Publishing, p.89
[5] Beever, A.(2004): Aristotle on equity, law and justice. In: Legal Theory, Volume 10, Issue 01, p.33
[6] Cotterrell, R.B.M (1989): The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths, p. 45
[7] Shapiro, I. (1994): Equity and the Rule of Law in The Rule of Law: Nomos XXXVI. New York: New York University Press
[8] Ibid.
[9] Shiner, R.A. (1994): Aristotle's Theory of Equity, 27 Loy. Los Angeles: Los Angeles Law Review, p. 1251
[10] Shapiro, I. (1994): Equity and the Rule of Law in The Rule of Law: Nomos XXXVI. New York: New York University Press
[11] Ibid.
[12] Cotterrell, R.B.M (1989): The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy. London: Butterworths
[13] Platt, P.G. (2009): Shakespeare and the Culture of Paradox. Farnham: Ashgate Publishing, p. 96
[14] Beever, A.(2004): Aristotle on equity, law and justice. In: Legal Theory, Volume 10, Issue 01, p. 36
[15] Platt, P.G. (2009): Shakespeare and the Culture of Paradox. Farnham: Ashgate Publishing, p. 107
[16] Ibid. p. 100
[17] Beever, A.(2004): Aristotle on equity, law and justice. In: Legal Theory, Volume 10, Issue 01, p. 41
[18] Shapiro, I. (1994): Equity and the Rule of Law in The Rule of Law: Nomos XXXVI. New York: New York University Press
[19] Beever, A.(2004): Aristotle on equity, law and justice. In: Legal Theory, Volume 10, Issue 01, p. 36
[20] Shiner, R.A. (1994): Aristotle's Theory of Equity, 27 Loy. Los Angeles: Los Angeles Law Review, p. 1250
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