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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas

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Plato. Classical Greek philosophy fully recognized
this duality of claims. Plato, ever sensitive of the
impossibility of ideals fulfilling themselves, saw the
necessity of counterweights to the law and expressed
the essence of the idea of equity (επιέκεια)
in the Statesman (or Politicus):

Stranger: There can be no doubt that legislation is in a
manner the business of a King, and yet the best thing of
all is not that the law should rule, but that a man should
rule, supposing him to have wisdom and royal power....
Because the law cannot comprehend exactly what is noblest
or most just, or at once ordain what is best for all. The
differences of men and actions, and the endless irregular
movements of human things, do not admit of any universal
and simple rule. No art can lay down any rule which will
last forever.... But this the law seeks to accomplish; like
an obstinate and ignorant tyrant, who will not allow any-
thing to be done contrary to his appointment or any ques-
tion to be asked—not even in sudden changes of circum-
stances, when something happens to be better than what
he commanded for someone.... A perfectly simple princi-
ple can never be applied to a state of things which is the
reverse of simple

(Jowett trans. 294 a).

The law, then, is not the perfection of right. The rule
of a wise ruler, possessing royal power, is better than
the rule of law. But since such a god or superman
cannot be found, it is good not to allow the claim to
be free from the guidance of laws—a claim which
implies possession of perfect knowledge and wisdom
with respect to every question or issue. The alternative
to the ideal is to require strict guidance of the laws
and to disallow their correction in particular cases by
judicial or executive action. It cannot be assumed that
the legislator will sit at the judge's side and direct him
to the exact particulars of his duty. This does not mean,
however, that laws are immutable; but until properly,
wisely altered, to violate the laws, “which are based
upon long experience, and the wisdom of counsellors
who have graciously recommended them and per-
suaded the multitude to pass them... would be a far
greater and more ruinous error than any adherence to
written law” (ibid., 300). Once we depart from the
ideal polity, rulers are bound by the principle to do
nothing contrary to their own written laws and national
customs; and the judge is only the guardian of these
laws and has no legislative, innovative, or amending
powers (ibid., 305). The emphasis, however, in this
dialogue is clearly antinomian, for the ideal statesman
“will do many things within his own sphere of action
by his art without regard to the laws, when he is of
opinion that something other than that which he has
written down and enjoined to be observed... would
be better” (ibid., 300).

This dialogue, which belongs to Plato's post-
Republic period (375-368 B.C.; Taylor, p. 19; Field,
p. 209), looks in two directions: back to the strict
antinomianism of the Republic, and ahead to the rule
of law in The Laws, probably Plato's last work. But


the Statesman, as the above discussion shows, clearly
articulates the problem of equity: the conflict between
the need to administer and apply the law in its general
terms, and the demands of justice or conscience in a
particular case, which point to the law as it should be.

In The Laws Plato still maintains that “No law or
ordinance whatever has the right to sovereignty over
true knowledge” (The Laws, 875, Taylor trans.). Since,
however, such insight is nowhere attainable in its per-
fection, “we must choose the second-best [i.e.,] ordi-
nance and law.” After ten years of experiment with
the code of laws, changes shall be possible only if
approved by all the magistrates, the popular assembly,
and the representatives of the oracular shrines. Any
one of these authorities shall have a veto power (ibid.,

Plato, however, left some room for equity. His most
notable and influential provision in this respect is that
the entire code should be preceded by a preamble, and
many specific laws should likewise be introduced by
preambles, which would be expositions of what the
legislator accounts laudable or the reverse (ibid.,
822-23). These preambles should be carefully distin-
guished from the laws proper; their purpose is to edu-
cate and persuade. The proposal was a novel one for
its time, and has implicit in it the possibility of distin-
guishing the spirit of a law from its letter, and in some
way presages what came to be known as the equity
of a statue (Cairns, pp. 154-56). Plato's preambles,
however, differ from later proposals and uses in that
they appeal to ultimate rather than immediate and
particular ends; but in any case preambles are bound
to be used as aids to interpretations, and make possible
interpretations that go beyond the strict letter of the
law to its deeper rationale (Morrow, p. 555). For the
law (nomos) ought always to approximate reason
(nous), its source and justification.

In Plato's scheme for a society subject to the rule
of law, there are other doors left open for equity to
enter, though covertly and interstitially. In judging,
Plato recognizes the difference between the question
of fact and the question of law. The judge does not
make the law—that is for the legislator. But the judge
finds the facts, and then imposes the punishment, with
respect to which, Plato acknowledges, he must have
some discretion. “You and I,” he says, “are about to
fix the penalty or fine to be inflicted on him who
wounds another, or does him a hurt. Now it is, of
course, a proper and obvious comment to make at this
point, to say: 'Wounds? Yes, but wounds whom, and
where and how and when? The different cases are
countless and their circumstances are widely unlike.'
So it is equally impossible to leave everything to the
discretion of the courts and to leave nothing” (The
875). The judge, then, has discretion in finding
the answers to the issues of fact. And if the judges are
properly trained, and are removed from the passions
which sway Attic dicasts who form a jury, we ought
not to impose on them by statute “the numerous and
important” rules which they may discover by insight,
“for attaching to the particular offences the penalty
merited by the wrong committed and hurt inflicted”
(ibid., 876). Since legislators “can consider most cases
and provide for them, but not all [cases],” the code
of laws of “the second-best” society can be nothing
more than “an outline of law with samples of penalties”
to which the judges can look for guidance as to a model
(ibid., 876-77, 934).

Perhaps the calmest and most comfortable way to
admit equity into the legal order is to assume that there
is a body of unwritten law, divine in nature, which
may not be contradicted with impunity by legislator
or judge. Thus, Plato assumes that the “law of our
forefathers” is what “mankind at large” calls the
“unwritten law,” and which is “a true corpus of ances-
tral and primitive tradition which, rightly instituted
and duly followed in practice, will serve as a sure shield
for all the statutes... committed to writing.” These
customs, practices, traditions, these unwritten laws, are
“the mortises of a constitution” (ibid., 793). Whatever
else they accomplish, these unwritten laws make possi-
ble the work of equity when the judge finds it necessary
or advisable to avoid the written law; for law, grop-
ingly or directly, must try to satisfy the demands of
justice, reason, or conscience. nomos must approximate
to nous.

Aristotle. In the development of the idea of equity,
Aristotle was far more influential than Plato. In his
Ethics Aristotle formulated the idea of epiekeia in terms
that made it, for future philosophers and jurists, the
locus classicus of the notion of equity.

Aristotle defines equity as the correction of the law
in cases in which the law is found to be deficient by
reason of its generality. Equity and law are, says
Aristotle, not entirely the same, nor are they entirely
different. Both are right and praiseworthy; they are
not opposed to one another; each is a kind of justice;
but the equitable is superior as a good. There are the
legally just and the equitable just, and the latter is a
correction of the former.

But why should the legally just ever need correction?
The reason, says Aristotle, is that all law is universal,
but about some things it is impossible to make a correct
universal statement; yet the law will make it, knowing,
however, that there is the possibility of error by reason
of the law's generality. No one is to blame for this
state of affairs, neither the legislature nor the law itself.
For the law must speak universally; but life will thrust


forth cases not covered by the universal statement; then
it becomes necessary to correct the omission, “to say
what the legislator himself would have said, and would
have put into his law if he had known.” The equitable
is, therefore, “not better than absolute justice but better
than the error that arises from the absoluteness of the
statement [of the law]. And this is the nature of the
equitable, a correction of law where it is defective
owing to its universality” (Ethics, Book V, Ch. 10).

The problem as formulated by Aristotle is not essen-
tially different from Plato's formulation in the States-
but its articulation in the Ethics has a sharper
juristic edge, and characteristically combines the prac-
tical with the theoretical. While most discussion of
equity disregard Plato's contribution, no scholar fails
to mention Aristotle's discussion of the subject.

In the Rhetoric, Aristotle repeats and somewhat
refines the same conception of equity. It is, he says,
“justice that goes beyond the written law” because
there are omissions from the written law. Some actions
may have escaped the notice of the legislators, and
in some cases it was simply impossible for them to
define all cases, yet they felt obliged to formulate a
general law which would be applicable to most but
not all cases; then Aristotle cites an example, which
has found a place in the literature on equity and legis-
lation: the legislators provide against infliction of a
wound with an iron instrument. A man wearing an iron
ring strikes another man. According to the written law,
he is guilty of wrongdoing, “but in reality he is not;
and this,” says Aristotle, “is a case for Equity.” Aristotle
then adds that actions which should be treated with
leniency are cases for equity, and among such actions
he includes those that are the consequence of misfor-
tune, error, and human weakness. In such cases one
should look to the intention of the legislator and not
to the letter of the law; one should look, he says (Freese
trans. I. xii. 13-19):

not to the action itself, but to the moral purpose; not to
the part, but to the whole; not to what a man is now, but
to what he has been, always or generally;... to prefer
arbitration to the law court, for the arbitrator keeps equity
in view, whereas the dicast looks only to the law, and the
reason why arbitrators were appointed was that equity
might prevail.

In the same treatise, when examining the application
of these notions to forensic oratory, Aristotle advises
that when the written law is against us, we should have
recourse to “the general law and equity as more in
accordance with justice”; that we should contend that
while written laws often vary, equity is constant; for,
like the unwritten law which Antigone used to justify
her having buried Polynices contrary to the law of
Creon, equity is based on nature; it is a part of genuine,
not spurious, justice (I. xv. 1-9).

There is no doubt that Aristotle's observations on
the forensic use of equity reflected a common practice;
for Greek orators appealed to equity, especially when
they faced archaic or rigid statutes, and particularly
as these laws applied to wills and contracts. Since there
were in ancient Athens 6,000 dicasts, who could be
chosen by lot to sit as judges, the heliastic courts (which
used the dicasts) in fact were a popular institution
representing the sovereign people, who possessed the
prerogative of the sovereign, and could therefore dis-
pense justice without regard to technicalities. Thus
equity was no abstract conception but an essential part
of Greek justice and its practical administration
(Vinogradoff, II, 63-69).