Analytic of Equity

14 Alan Watson, Equity in the Time of Cicero, in Aequitas and Equity: Equity in Civil Law and Mixed Jurisdictions 24 (Alfredo Rabello ed., 1997); Michel Humbert, Equity in the Corpus Iuris Civilis Aequitas and Equity: Equity in Civil Law and Mixed Jurisdictions 31 (Alfredo Rabello ed., 1997).

15 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: “Es ist kein Zweifel, dass in der Spaetzeit und Im Corpus Iuris eine volle Rezeption der Aequitas-Lehre stattgefunden hat.” Id. at 44.

16 Peter Stein, Equitable Principles in Roman Law in Equity in the World’s Legal Systems: A Comparative Study 76, 87 (Ralph A. Newman ed., 1973).

17 Karl-Heinz Ziegler, Aequitas in Roman International Law, in Rabello, supra note __, at 54.

18 Cicero, de Officiis. 1.10.33; Ziegler, supra note __, at 56.

19 W.W. Buckland and Peter Stein, A Text-book of Roman Law 55 (3d ed. 1963). This is in fact really the tip of the iceberg since there are phrases besides aequitas that have plausibly been associated with epieikeia/equity, e.g. bonum et aequum by Budeaus, see J.L. Barton, Equity in the Medieval Canon Law in Equity in the World’s Legal Systems: A Comparative Study 139, 153 (Ralph A. Newman ed., 1973). But see Fritz Pringsheim, Bonum at aequum, 52 Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte 87, 97 (1932), who assumes that the relevant sense of equity is mildness in opposition to strict law: Darin [a passage attributed to Celsus] liegt keine Verweisung auf die Billigkeit, sondern eine Einscharfung der Interpretationskunst . . . Id. at 84. This passage demonstrates an acknowledgement of one kind aspect of equity (as relates to interpretation), while rejecting another. See generally Guido Kisch, Erasmus und die Jurisprudenz seiner Zeit 26-35 (1960) [hereinafter, Kisch, Erasmus].

20 Stein, supra note __, at 87. Note that Stein distinguishes between the application of these equitable principles in the classical period, and equity in the post-classical period which consisted in relaxation of the results arrived at through application of these equitable principles. Id. at 92.

21 Norbert Horn, Aequitas in den Lehren des Baldus 47 (1968).

22 See Horn, supra note __, and later discussion

23 Following Goerner, 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, Political Theory, Aug. 1983, at 393. This key distinction, which will we 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.

24 See generally, John Finnis, Aquinas, 266-74 (1998).

25 Raymond B. Marcin, Epieikeia: Equitable Lawmaking in the Construction of Statutes, 10 Conn. L. Rev. 377, 391 (1977-78).

26 Steven W. DeVine, The Concept of Epieikeia in the Chancellor of England’s Enforcement of the Feoffment of Uses Before 1535, 21 U. Brit. Colum. L. Rev. 323, 331-2 (1987) [hereinafter, DeVine, The Concept of Epieikeia). 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 (compiled around 1140), 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. Peter Landau, “Aequitas” in the “Corpus Iuris Canonici” in Rabello, supra note __, at 132-39.

27 As quoted in Marcin, supra note __, at 389 n.58.

28 Although they do not necessarily give it a technical sense, at least at first. Here is Kisch: Erasmus hat sicherlich nicht an “Billigkeit” als Interpretationsmethode im Sinne von Stroux gedacht . . . Unter “aequitatis” nun scheint er Gerechtigkeit in ganz allgemeiner Bedeutung (“sachliche Gerechtigkeit”), der die Unrechtigkeit, “iniquitas” (“sachliche Ungerechtigkeit”) gegenuebergestellt wird.” Kisch, Erasmus, supra note __, at 62-63; see also id. at 159.

29 Guido Kisch, Humanistic Jurisprudence, 8 Studies in the Renaissance 84-85 (1961).

30 Donald R. Kelley, Civil Science in the Renaissance: Jurisprudence Italian Style, The Historical Journal, Dec. 1979, at 788.

31 DeVine, Epieikeia in International Law, supra note __, at 233. This is a passage from Grotius translated by DeVine.

32 Id., at 235.

33 Jean Domat, A Treatise of Laws, Tit. I Sec. II, v-viii. Also, see generally James Q. Whitman, The Legacy of Roman Law in the German Romantic Era, 46-50 (1990).

34 Donald R. Kelley, History, English Law, and the Renaissance, 65 Past and Present 24, 28 (1947) [hereinaften, Kelley, English Law].

35 Id. at 24-5, 30.

36 Barton, supra note __, at 154.

37 On the powerful influence of St. German, see Franklin Le Van Baumer, Christopher St. German, The American Historical Review, July 1937, at 631 (“[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 632, and his metaphysics was essentially Thomistic, id. at 639, including his association of equity with god’s law (642). Id. at 642.

38 Barton, supra note __, at 146.

39 Kelley, English Law, supra note __, at 35.

40 Marcin, supra note __, at 396-97.

41 Consider the following passage: To conclude, I [Hake] take the saying of Justice Yelverton in 8 E. 4 to belong to our present purpose. The saying is this. In matters doubtfull (sayeth he), wee must does even as the sophonists and the civilians doe, who, when a newe case cometh before them wherein they had no law before (meaning, no doubt, as in the verball sense of law) they resorte thereupon to the lawe of Nature which is reason and grownde of all lawes, and therein owte of that that is most for the Commonwealthe they make a law; quod non negatur. Edward Hake, Epieikeia: A Dialogue on Equity in Three Parts 108 (D.E.C. Yale, ed., 1953); 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.

42 Eric Zahnd, The Application of Universal Law to Particular Cases: A Defense of Equity in Aristotelianism and Anglo-American Law, 59 Law & Contemp. Probs. 263 (1996); Roger A. Shiner, Aristotle’s Theory of Equity, 27 Loy. L.A. L. Rev. 1245 (1994) [hereinafter, Shiner, Aristotle].

43 Zahnd, supra note __, 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.

44 Hake, supra note __, at 27-28.

45 This critique does not really apply to Shriner, 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.” Shriner, Aristotle, supra note __, 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.

46 See generally Marianne Constable, Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law, 19 Law & Soc. Inquiry 551 (1994). On Dworkin’s thin metaphysics, see Roger A. Shriner, The Metaphysics of Taking Rights Seriously, Philosophia, Mar. 1983, 223-56.

47 For similar conclusions on equity as a personal virtue, see Shriner, Aristotle, supra note __ and Meyer-Laurin, supra note __, at 49-52, but see Lawless, supra note __, 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 this, see David Cohen, Law, Violence and Community in Classical Athens (1995).

48 C. Carey, Nomos in Attic Rhetoric and Oratory, 116 Journal of Hellenic Studies 36-37 (1996).

49 Id. at 41-42.

50 Cohen, supra note __, at 90-101.

51 Noah Feldman offers a fourfold division for thinking about equity that clearly relates to the argument of this section: Rectification v. Interpretation, Authorization v. Non-Authorization. In his scheme, thinkers who see equity as outside of the law see it as rectifying the law. Since equity was itself extra-legal, 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, (unpublished manuscript, on file with the author), www.law.nyu/clppt/program2002/readings/feldman/feldman.rtf (last visited Oct. 2, 2004). 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 hope not to do, namely reify the rich tradition into a formula.

52 See, e.g., Ludwig Wittgenstein, Philosophical Investigations page 200 (1953); Ludwig Wittgenstein, Zettel § 197 (1967).

53 See the discussion in Main, supra note __, at 459-64.

54 DeVine, The Concept of Epieikeia, supra note __, at 333.

55 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).

56 United Steelworkers of Am. V. Warrior & Gulf Navigation Co., 363 U.S. 574, 581-82 (1960).

57 For instance, quoting Coke, who said “twelve honest jurors are good chancellors.” Meyler, supra note __, at 3.

58 See Jerome Frank’s fascinating summary of the history, included in footnotes to his decision in Usatorre v. The Victoria, 172 F.2d 434, 439-41 (2d Cir. 1949); see also Judge Posner’s acceptance of the tradition in Friedrich v. Chicago, 888 F.2d 511, 514 (7^th Cir. 1989).

59 On Baldus, see Horn, supra note __, at 27 et seq.; Hake, supra note __, at 88, 90.

60 Ziegler, supra note __, at 54. See also, e.g., Code Civil § 1134-35. Importantly the Code Civil was heavily influenced by the work of Domat and Pothier, both of whom, as we have seen, gave a prominent role to natural equity. James Gordley, Myths of the French Civil Code, 42 Am. J. Comp. L. 459, 460.

61 See M’Culloch v. Maryland, 17 U.S. 316, 407 (1819) for his famous insistence that interpreting a Constitution is different from interpreting a Code.

62 Reinhard Zimmerman, The Law of Obligation: Roman Foundations of the Civilian Tradition 628-30. For international courts as operating ex aequo et bono, per 38(2) of the ICJ Statute, see DeVine, Epieikeia in International Law. Also, for Baldus, see Horn, supra note __, at 156.

63 Zimmerman, supra note __, at 628-30.

64 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. 8-9.

65 Wolff: “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…” Jus Gentium Method Scientifica Pertractatum, § 409 (Joseph H. Drake, trans., 1964) (1764). See also § 375, where Wolff claims that the laws of nature provide rules for interpretation of treaties. For Baldus and aequitas and the ius gentium, see Horn, supra note __, at 72.

66 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, Epieikeia in International Law, supra note __, at 252-59.

67 See, e.g., Marcin, supra note __, at 391; Horn, supra note __, at 14.

68 Delba Winthrop, Aristotle and Theories of Justice, The American Political Science Rev., Dec. 1978, at 1207.

69 Alas, it should be noted that discounting 1.15 in favor of 1.13 hardly solves the problem, since at Rhetoric 1.10 we have yet another division, see Carey, supra note __, 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 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. Hans-Georg Gadamer, Truth and Method 318-20 (Joel Weinsheimer & Donald G. Marshall trans., 2d ed., 1994). 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. See especially, Martin Heidegger, On the Essence and Concept of Phusis, 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 post-moderns, is clearly beyond the scope of this Note.

70 See Horn, supra note __, at 13.

71 See discussion above, also Horn, supra note __, at 97.

72 Nussbaum, supra note __, at 94.

73 Id. at 97, following NE 1126a4-8.

74 For the development of this argument, see Anton-Hermann Chroust, Aristotle’s Conception of “Equity”, 18 Notre Dame L. Rev. 119 (1942-3). For Baldus, see Horn, supra note __, at 95. For examples from contemporary international disputes, see DeVine, Epieikeia in International Law.

75 On the roman emperors, see Landau, supra note __, at 129 (citing Dig. 4.1.7), and for the papal challenge see id. at 135.

76 Charles C. Bayley, Pivotal Concepts in the Political Philosophy of William of Ockham, Journal of the History of Ideas, Apr. 1949, at 199-218.

77 Goerner, supra note __, at 411-15.

78 R.C. Van Caenegem, An Historical Introduction To Private Law 126 (1992).

79 Lorna Hutson, Not the King’s Two Bodies in Rhetoric And Law In Early Modern Europe 178 (Victoria Kahn and Lorna Hutson eds.) (following Cromartie). Hake also provides ample support for this argument, see, e.g., Hake, supra note __, at 78-85.

80 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 and obligation. 12. Equity acts in personam.

Paul Jackson, The Maxims of Equity Revisited in Equity and Contemporary Legal Developments 74 (Stephen Goldstein ed., 1990).

81 Arthur R. Hogue, The Origins of the Common Law 188 (1966); also Radin, Juster Justice, supra note __, at 560 and DeVine, The Concept of Epieikeia, supra note __, which provides 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 have granted their land, by law, to feoffees to be held for the benefit of himself or some others in order to evade feudal incidents. Trouble arose when feofees, who owned the land in fee simple, refused to follow the feoffors instructions, and for this there was no remedy at law.

82 See Pound supra note __.

83 Max Radin, The Chancellor’s Foot, 49 Harv. L. Rev. 44, 65.

84 Hake, supra note __, at 5. This concern goes both ways, e.g. Maitland: “[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.

85 Gadamer, supra note __, at 318.

86 Id.

87 See later discussion of Aristotle on friendship. To prioritize friendship over justice is to prioritize a uniquely human capacity.

88 But John Rawls explicitly see himself as pursuing a Kantian project, just as Charles Taylor sees himself as pursuing a Hegelian one.

89 Immanuel Kant, Metaphysical Elements of Justice 34-35 (John Ladd trans, 1999).

90 Allen D. Rosen, Kant’s Theory of Justice; Allen Wood in his notes to Hegel’s Philosophy of Right 448 (H.B. Nisbet trans. 2003).

91 Rosen, supra note __, at 109-11.

92 In conversation.

93 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.

94 See Allen Wood, Hegel’s Ethical Thought 144-173 for a general discussion of Hegel’s critique of Kant.

95 This is a bit of an understatement insofar as in Thucydides the Athenians describe themselves collectively as having epieikeia in contrast to other cities (1.76.4), 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 (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.

96 Max Radin, The Theory of Judicial Decision: Or, How Judges Think, 11 A.B.A. J. 359-360.

97 Winthrop, supra note__, at 1214.

98 Id.

99 Philippe Nonet, Judgment, 48 Vanderbilt L. Rev. 987, 994-5 (1995).

100 Winthrop, supra note __, at 1215.

101 Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition 58-59 (1986).

102 Especially when one looks at Rhetoric 2.8, 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.

103 Or perhaps the communal sense of what is proper among friends.

104 Nussbaum, supra note __, at 97.

105 Id. at 95.

106 Id. at 98-99.

107 Id. at 100.

108 Id. at 101.

109 Id. at 114. Nussbaum says she will return to 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 this article – Nussbaum does not really say anything false, say that Aristotle or the Stoics espoused mercy or 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.

110 Interestingly, Nussbaum notes that Seneca has a political agenda because he would like the emperor to show mercy. Id. at 104-05.

111 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.”