Imagining Equity II
Bill Long 12/10/04
Applying the Method
My anamnestic method of doing legal history first "remembers" the time in which a certain statute is enacted or a certain concept discussed and then "imagines" the features of such a statute. When you deal with a concept, however, like equity, you are less concerned with recreating (or "remembering") the historical situation because the "problem" posed by the concept transcends the era out of which it arose. By doing anamnestic history, the student is in a far better position to zero in on the essence of a concept than if s/he just "read the assignment." Professors become pleased; inadequate scholarship is exposed as such; true learning happens. Let's illustrate this for the concept of equity.
Equity's Beginnings
Everyone knows by now that the basic discussion of equity (epieikeia in Greek) in Western literature is in Aristotle's Nichomachean Ethics 5.10. But I won't even quote Aristotle here. If you know the problem that equity tries to solve, you really don't need to study Aristotle closely. As a matter of fact, if you really understand the problem of equity, you can breeze through all subsequent treatments of the subject really quickly. So, here is equity in a nutshell.
Equity is designed to implement "fairness" or "justice" by softening the rigors of law. The rigors of law arise from the fact that statutes are enacted and that, if well-written, not only have substantive provisions and definitions of significant terms but also have sanctions for violation of the statute. Statutes are written to place certain conduct off limits in civil society. If your conduct falls within the ambit of the statute, you can be sanctioned.
However, there are two ways that a statute as written might be "unfair." First, it might be "unfair" because it sanctions some conduct that really ought not to be sanctioned because of extenuating circumstances. For example, suppose it is a law that you can only park in a particular zone for one hour. After you have been there 30 minutes, a large tree falls, surrounding the car and making it impossible to move the vehicle for two hours. If you got a ticket after 1 1/2 hours, equity would argue (against the rigors of the law) that the words of the statute ought not to be literally enforced.
Second, the law might be unfair because it cannot foresee and control all the varied circumstances of life. As a matter of fact, it is probably accurate to say that statutes stimulate creative endeavors to skirt statutes. This is especially true in the tax area. Thus, there will be "gaps" between what is written in the statutes and the actual conduct of humans. Criminal law tries to minimize this as much as possible, so that people have "notice," (a constitutional requirement) that what they are doing is wrong. Yet, because there are "gaps" between statute and conduct, equity might be applied.* In this instance, equity is the "fair" thing to do.
[*This issue is actually more complex than appears at first glance. The study of the interpretation of statutes is a "hot" subject precisely because scholars are unclear on how to handle the issue of what to do when conduct not precisely contemplated by the statute, but seemingly within the scope of the statute, takes place. Does one "stretch" the principles of the statute to include this conduct? Does one try to read the language broadly to encompass the conduct? Is one free to announce a rule of law that is seemingly consistent with the statute but admittedly is not directly derived from it? ]
One early Modern English Text
Now that the contours of the equity debate have been briefly laid out, we can turn to any text with a theoretical discussion of equity, and find our way around quite easily. Take, for example, a most singificant text from the 16th century, which one scholar has called "The first critical discussion of the [English] common law of any substance to be published,"--i.e., Christopher St. German's Doctor and Student (1528-31). Doctor and Student is a purported dialogue between a doctor of divinity and a law student concerning the basic principles of the common law. Much English law before 1530 was written either in law French or Latin, and since Doctor and Student was written both in Latin and English, it could simply and clearly present basic concepts for an intelligent (but not classically-trained) reader. One of the subjects it treated was equity. See if you can determine (despite the 16th century English) whether the two basic issues with which equity has to deal (gaps and rigor) are present.
The Doctor is speaking. "Equyte is a ryghtwysenes that consideryth all the pertyculer cyrcumstances of the dede the whiche also is temperyd with the swetnes of mercye. And suche an equytye must alway be observyd in every lawe of man and in every generall rewle thereof and that knew he wel that sayd thus....
"And for the playner declaracyon what equytie is thou shalt understande that syth the dedes and actes of men for whiche lawes ben ordayned happen in dyvers maners infynytlye. It is not possyble to make any generall rewle of the lawe but that it shall fayle in some case. And therefore makers of lawes take hede to suche thynges as may often come and not to every paritucler case, for they coulde not though they wolde...." Doctor and Student (Selden Society Publications, No. 91, 1974), 95-97.
Conclusion
If you take the time to slog through the language, and it really is not too difficult to do so, you will see that both of the "issues" of equity are presented: equity as tempering the harshness of law and equity as filling in the gaps. Thus, in order to understand the phenomenon of equity you need just to imagine what it is trying to do with respect to law. Once you know this, you can nimbly rush through pages and pages of history, alighting where you will, to find that any author who deals with the principles of equity is really engaging in the same discussion. Anamnesis, consisting of remembering and imagining, is vindicated as a method of doing legal history.
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