Equity: A Philosophical Review Part I: Aristotle and Aquinas

Part I (Maybe. I tend not to follow through on these.)

     So, I'm not very happy with how people talk about the concept of equity, and I had written a long introduction to this post discussing my unhappiness. But ultimately, I don't want to discuss those issues. Rather than complaining about how it is discussed in modern discourse, I have decided to undertake a philosophical examination of equity. This is the beginning of that examination. I don't intend any of these considerations to be conclusive. These are more reflections than conclusions. 

The Roots of Equity

     Let's talk about the roots of equity, by which I mean the linguistic root of the word, for it is very misleading. 

     Equity looks and feels like the word equality. Indeed, they have the same Latin root, "aequus," meaning equal. They even look and sounds the same way in English. So, there might be a tendency to suppose that equity is fundamentally related to equality. But not so fast!

     The Latin word "aequus,-a,-um" can mean "equal," but it has a whole host of meanings in addition to this. It can mean equal, or even, or level, or flat, or favorable, of friendly, or right, or just, or impartial, or fair. When used as a singular noun it can mean fairness, but when used as a plural noun it can refer to friends (we might say equals). I would like to thank my Smith's Smaller Latin-English Dictionary 1952, 6th edition for all these wonderful definitions. 

     When coming into English, the meaning of this root changed depending on circumstances. For instance, the word "iniquity" has that same exact prefix and root word as "inequity," yet these two words mean different things. (By the way, words which share their etymological roots but mean different things are called doublets.) Iniquity and inequity both sound similar, and both sound bad, but they have different meanings, as the former implies sin and debasement while the later implies unfairness. These changes in meaning can help illustrate the variety of meanings the Latin origin word aequus had. 

     Equity in Latin is "aequitas," and as we shall see when discussing Thomas Aquinas, this has it's own unique definition, which is neither exactly equality nor exactly fairness. So what exactly does equity mean then? Well, let's turn to the philosophers.

Aristotle on Equity 

     The word Aristotle uses for equity is ἐπιείκεια. Now, I am not a Greek scholar, so I can't tell you the roots of this word. I can only assure you this is the word translators translate as equity. 

     Aristotle devotes Book V Chapter 10 of his Nicomachean Ethics to the topic of equity. It's a fairly short section, but it's pretty rich in content. His theory in a nutshell is this. The law is general by necessity, since it must apply to all cases. But all cases are particular and unique, and it is inevitable we will encounter cases where the law should not apply. Equity is the virtue by which we decide not to apply the letter of the law where doing so would create injury. Here is what Aristotle says:

[L]aw is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor in the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. When therefore the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver's pronouncement because of its absoluteness is defective and erroneous, to rectify the defect . . . This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality. In fact this is the reason why things are not all determined by law: it is because there are some cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary.

     Aristotle unfortunately gives no examples, and he only describes the equitable person as one "who does not stand on his rights unduly, but is content to receive a smaller share although he has the law on his side." One thing that Aristotle does make clear, however, is that equity adds to the justice of the law. Justice without equity is not complete. As he puts it, "Justice and equity are therefore the same thing, and both are good, though equity is the better." 

     The purpose of equity is thus to negate the law where the law leads astray due to the situation being the exception to the rule. It's role appears to be negative. It functions as a veto on the law. 

Thomas Aquinas on Equity

     Thomas Aquinas follows Aristotle's opinion on equity. In his Summa Theologica, he discusses equity in his treatise on the virtues, but he references a closely related concept from his treatise on the law. In his treatise on the law, he takes up the question of whether it is ever right to act against the letter of the law. (I-II, Q. 96, Art. 6) His answer there is that there are times when people must break the letter of the law, and his reasoning is very similar to Aristotle's.

However, it happens many times that the observance of something is useful for the common welfare in most cases, yet in some cases is extremely harmful. Therefore, since the lawgiver cannot have in view all the individual cases, he frames the law according to what usually happens, by directing his intention to the common utility. Hence, in a case in which the observance of such a law would be injurious to the common welfare, the law is not to be observed. 

     Aquinas provides as an example an ordinance that states the city gates must remain closed while it is under siege, but there is an ally outside the gates whose entrance to the city is essential to victory. The guard may have to disobey orders to let the ally in, since the ordinance had not accounted for this situation. Such an action breaks the letter of the law, but it is still just. Aquinas further specifies that individual citizens may only disobey the law in cases of absolute necessary, while only rulers may dispense with the law under normal conditions.

     In his discussion of equity in his treatise on the virtues (II-II, Q. 120), Aquinas refers back to this discussion of dispensing with the law. He chooses to use the Greek word from Aristotle to refer to equity, but he gives the Latin equivalent as "aequitas." He offers the same explanation Aristotle gives, namely, there will always be cases which the law was never meant to cover and in which, were the letter of the law to be followed, injury would result. Where Aquinas is more helpful than Aristotle is in his examples.

Thus the law requires deposits to be restored, because in the majority of cases this is just. Yet it happens sometimes to be injurious--for instance, if a madman were to put his sword in deposit, and demand its delivery while in a state of madness, or if a man were to seek the return of his deposit in order to fight against his country. On these and like cases it is bad to follow the law, and it is good to set aside the letter of the law and to follow the dictates of justice and the common good. This is the object of "epikeia" which we call equity. Therefore it is evident that "epikeia" is a virtue.

     Astute philosophy students will pick up on Aquinas's use of Plato's example in this passage. What is helpful about these examples is that, while Aristotle seemed to suggest equity was being "content to receive a smaller share" than the law would entitle one, Aquinas's examples of equity show individuals being equitable by keeping a share which they would normally owe. Equity might not only mean forgiving your debtors. It might mean rejecting your creditors. 

     What Aquinas clarifies, which is unclear in Aristotle, is that what is being negated is the application of the law, not the people the law applies to. The application of the law is negated based on the common good. It is not a virtue by which, say, the rich forgive debts and can thereafter feign moral superiority. It is not a virtue that always operates in one direction. 

A Check on Legalism

     In both Aristotle and Aquinas, equity is a check on legalism, which is the excessive emphasis on the letter of the law. Here, equity is not the same thing as fairness, since fairness itself is not as narrowly defined as equity. Also, equity is not the same thing as impartiality, since one can be impartial while being overly strict. And equity is not the same as equality. In fact, its relationship to equality is almost the inverse. Not all cases are equal, and when some of these cases fall so far outside the norm that applying the law would cause harm, it is equity that acts as the corrective through refusal to apply the law strictly.

The Hypothetical Will of the Lawmaker

     There is one more feature of both Aristotle's and Aquinas's definition of equity that is worth discussing, and actually has an analogous relation to some aspects in constitutional law. Both Aristotle and Aquinas argue that equity is not so much ignoring the law as much as considering what the law would say had the lawmaker been aware of the precise circumstances being considered. 

     It is important to note that both Aristotle and Aquinas are not talking about breaking or suspending bad laws when they talk about equity. They are talking about suspending or dispensing with good laws. As Fr. Henle notes in his commentary on Aquinas, "the question here is not about unjust laws but about just laws for the Common Good which fail in individual cases." (Treatise on Law, translated by Henle, Notre Dame Press, 2002 reprint, pg. 365) In these cases, assuming the laws are just, and the lawmaker is just, yet the law creates harm in its application, both Aristotle and Aquinas believe the lawmaker would have created exceptions in the law had they been aware in advance of those circumstances facing the legal system. 

     For Aristotle, equity is "what the legislator himself would have said had he been present, and would have put into his law if he had known." And Aquinas states, quoting a codex I myself am not familiar with, "Without doubt he transgresses the law who by adhering to the letter of the law strives to defeat the intention of the lawgiver." Thus, for both Aristotle and Aquinas, equity is also an appeal to the original intent of the lawmaker. 

     In this interpretation of equity, original intent and strict textual analysis are sometimes at odds with each other; and when it happens that a strict textual analysis would, due to a particular set of circumstances, result in an application of the law which cuts against the common good, the strict textual analysis must be abandoned. 

     Please note, however, that at least in Aristotle's interpretation, this original intent is not the same thing as what the lawmakers actually intended at the time they passed the law. Rather, this original intent is what the lawmakers would have intended had they been aware of the unique set of circumstances in front of the judges. As a result, it cannot be assumed that one will find this intent in the actual thought process of the lawmakers. This intent is hypothetical. However, this is exactly what Aristotle and Aquinas would expect. After all, circumstances that the lawmakers did not consider when drafting the law are circumstances that were not considered by the lawmakers. A strict textual analysis of the law is not always justified. A strict analysis of the lawmaker's actual intention suffers from the same defects. 

Conclusion

     This ancient and medieval definition of equity is almost completely unrelated to modern discussions on the topic, as far as I can tell. And yet, I find this discussion of equity in Aristotle and Aquinas incredibly refreshing and helpful for understanding modern discussions. I can almost see, and perhaps will one day soon be able to articulate, how such a precise definition, despite not being modern, would help to shed light on many modern issues, from discussions of original intent in U.S. constitutional law, to discussions of racial equity. 

     But I reserve all such considerations for a future date. For now, my next task is to figure out what happened to the concept of equity after Aquinas. For the life of me, I cannot find any discussion on this topic in the Enlightenment. My next spots to look are going to be in English common law, and I think maybe I should take a look through Kant's Metaphysics of Morals for related topics. If anyone knows of good resources for this, please let me know. 

Have an equitable day!