Bill Long 10/17/04
Understanding the Roots of Equity
One of the most significant developments in American legal history was the merging of law and equity. At one time there were law courts and equity courts in America (derived from the common law examples in England) but with the adoption of portions of the Field Code (of Civil Procedure) in New York State in 1848, the merger of law and equity began. It continued apace through states that adopted the "Code Pleading" mechanism of the Field Code, though many states kept a formal distinction between law and equity until the promulgation of the Federal Rules of Civil Procedure in 1938. On occasion one will still run into an equity court, but the most frequent use of the term now is as an adjective and in the general sense of "fair" or "reasonable." Such a usage obscures a vibrant, long and controversial history of the term.
Getting the Terms Straight
The two English terms epiky and equity capture the same reality, though the former term is less frequently attested and has mostly passed out of use. Epiky is derived directly from the Greek term epieikeia while equity is taken from the Latin translation of epieikeia, aequitas. Epiky is defined by the OED as "reasonableness, equity, as opposed to rigid law." In so defining it, the OED appeals not only to the function of equity in English common law but also to its much deeper roots in classical Greece.
The Greek Origin of Epieikeia
The word epieikeia has both a philosophical and practical moral significance in ancient Greek. The former is captured by Aristotle in the Nicomachean Ethics (5.10), while the latter is represented in several New Testament passages. To dispose of the latter first, epieikeia (the adjective form is epieikes), means "gentleness, graciousness, clemency, constant forbearance." The Apostle Paul uses the term to characterize the "meekness of Christ" (epieikeia tou christou--II Cor 10:1)," and thus to urge a gentle and kind spirit on the recipients of his letter.
Yet its philosophical roots go deeper, and it finds its origin in refelctions on law. Aristotle says,
"The law 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 the lawgiver, but in the nature of the case: the material of conduct is essentially irregular (Nicomachean Ethics 5.11)." When such a situation arises, the lawgiver may "rectify" the problem.
Aristotle speaks of two realities that are evident to every judge or legislator or legal practitioner. Written law, no matter how specific it claims to be, is unable to handle all the "essentially irregular" situations that arise in life. A "general statement" doesn't "cover" everything that emerges. Hence, what does a judge do when confronted with a situation that isn't covered by the letter of law? He or she still has to decide the question, and so the decision reached will be on the basis of epiky or equity rather than as a "legal" decision. When the judge makes an equitable determination, then, on what basis does s/he decide?
In his online paper entitled "Equity in History," Professor Noah Feldman of NYU Law School talks about two theories that explain judicial decision-making when the language of a statute or enactment doesn't specifically cover the situation at hand. On the one hand, according to the rectification theory, a judge will see himself trying to "correct" or "rectify" the inadequacy and error of the law by doing the "right thing" and making his decision. For example, if it was an offense to leave one's car parked for more than 2 hours in a particular zone but if one returned to the car after 90 minutes and discovered that one could not move the car for another 90 minutes because the police had placed barricades around the area, a judge might consider that the law needed "correcting" because of the unforeseen situation of the barricade.
On the other hand is the interpretation theory, more popular in the late 19th-20th centuries, which argues that what the judge is really doing is not "correcting" the law but applying the spirit of the law to the factual scenario that wasn't imagined by the law's framers. Thus, the judge is giving a "principled reading" of the law and applying it to unforeseen cases.
Back to Epiky
This classification, though helpful, seems not to capture the extent of what a judge who wants to act with epiky does, because it doesn't fully classify the nature of human actions. I would rather divide things as follows. Does the action fit under the literal reading of the statute? If so, does the statute as applied to the action lead to absurd results? If so, should one "correct" the absurd results? If so, one is acting in an equitable manner, one is practicing epiky. If the action doesn't fit under the literal reading of the statute, then what one is doing may be interpreting or inventing (and what really is the difference between the two?) a new reality. This also is epiky. So, rather than simply being a rectification or interpretation, it is more fruitful to look at epiky according to the situation presented: does the statute cover the situation but appear to lead to an irrational result or does the statute not cover the situation? In either instance, it seems to me, the judge can claim she is interpreting.
If the statute covers the situation, but is absurd, the judge can claim to find principles within the statute itself that go against the literal application of the statute. A sort of similar means of interpretion emerged for me more than 30 years ago when the raging debate in Protestantism was the ordination of women to the clergy. Many scholars would point to passages from Paul that seemed not to permit it, but Dean Krister Stendahl (of Harvard Divinity School at the time), pointed to Gal. 3:28, Paul's "principle of freedom," which would, if taken seriously, undermine his own more specific statements apparently forbidding the practice elsewhere. Thus, Stendahl set Paul against Paul to come up with his answer.
Thus, in dealing with the notion of epiky or reasonableness, in law, the first question is whether the law seemingly "covers" the case. If so, would its application be absurd? If so, then on what basis does one overturn the law? Perhaps you can argue that the law undermines itself or has within it a principle opposite to the literal reading of it. Perhaps you can just say, "I disagree with the law and will interpret it how I want." But this is a far cry from the situation where there is apparently no law on the issue and one tries to derive an answer from other settled principles of law. But the real debate, it seems to me is whether a law can be "stretched" to include the current problem when it doesn't expressly provide for it. Is one then doing law? equity? something else?
It seems to me that in our postmodern age, once you have reduced all reading of text and living of life to interpretation, maybe the law/equity division has no meaning. Philosophy, therefore, can dipose in 2004 of what David Dudley Field wanted to merge in 1848.
Copyright © 2004-2010 William R. Long