Lecture 16 — Equity

Next, we will treat equity and the equitable thing; we will consider in what way equity is related to justice, how the equitable is related to the just thing. [1078]

When we stop to think of it, they are not absolutely the same, but neither do they differ completely in kind. Sometimes we praise a thing and a man as equitable, and hence transfer “equitable” as a greater good to the things we praise, showing that it is better. Other times it seems unfitting, to those following reason, that the equitable—as something beyond the just—is praiseworthy. Either the just thing or the equitable (which is other than the just) is not good. Or, if both are good, then they are the same. The doubt generally arises because of the things said about the nature of what is equitable. [1079]

Everything said is true in a certain way and contains no latent contradiction. The equitable is something just and is better than some other just thing, but it is not better as another genus separated from the just. Therefore, the equitable is the same as the just thing, and when both are good, the equitable is better. [1081]

What raises the doubt is that the equitable is a just thing but is not something legal, but rather a directing of the legally just. [1082]

The reason for this is that, while every law is proposed universally, it is not possible to deal with some things in a universal way. Where the necessary exists, we can speak universally, but it is impossible to apply this rightly where the law understands the application to be valid in the majority of cases, while being clearly aware that a defect is present. [1083]

Nevertheless, the law is good, for the defect is in neither the law nor the making of it, but in the nature of the thing. And clearly the matter of human actions is such that they are not always done in the same way. [1085]

Therefore, when the law proposes something universally and a particular thing happens contrary to this, then, where the legislator has left a gap and erred in speaking absolutely, it is right to correct what is deficient. The legislator would have spoken on the point in this way if he had been present, and if he had known, he would have filled this gap in the law. [1086]

For this reason, what is equitable is just and is something more excellent than one kind of just thing, not better than that which is absolute, but better than that which errs by reason of being proposed absolutely. This thing that is the equitable is the directing of the law where there is deficiency because of faulty universal application. The reason that everything cannot be judged according to the law is that it is impossible to make a law for certain cases. Hence, there is need of passing judgment, for the rule of indeterminate matter is itself flexible, like the leaden rule used by builders in Lesbos: just as that rule conforms to the shape of the stone and does not remain the same, so also the sentence is adapted to the conditions. In this way, then, it has been made clear what the equitable is and that it is both the just and better than the just thing. [1087]

From this, it is obvious who the equitable man is. He is one who chooses and does the things spoken of; he is not a zealous enforcer of justice in the worse sense, but a mitigator, although he recognizes the law as a deterrent. [1089]

And this habit of equity is a species of justice and not another kind of habit. [1090]

1078. Next, we will treat equity and the equitable thing. After the Philosopher has finished the consideration of justice in general, he now begins to consider equity, which is a general directive of justice.

First, he indicates his intention.

Second, at when we stop to think (1137a33; [1079]), he proceeds with his proposition.

He says first that, following what has been said, we should discuss equity, which designates a certain habit, and the equitable thing that is its object. In the discussion, we should declare how equity is related to justice and how its object, which is called the equitable thing, is related to the just thing, the object of justice. In Greek, epiiches is understood as what is reasonable or becoming; it is derived from epi, meaning “above,” and ikos, meaning “obedient,” because by equity a person is obedient in a higher way when he follows the intention of the legislator where the words of the law differ from it.

1079. Then, at when we stop to think (1137a33), he proceeds with his proposition.

He discusses it under three headings.

First, he determines the object of equity;

second, at from this, it is obvious (1137b34; [1089]), the subject of it.

Third, at and this habit (1138a2; [1090]), he determines the habit.

He considers the initial point in a twofold manner.

First, he raises a doubt;

second, at everything said is true (1137b7; [1081]), he solves it.

He says first that, if we look closely, it does not seem that the equitable thing is absolutely the same as the just, because the equitable sometimes departs from what is legally just; nor does it seem to be altogether different in species from what is just. He assigns a reason for these things: sometimes we praise what is equitable and declare that it is well done. Likewise, we praise the kind of man who does it—we even call him a manly and perfect individual. So it is evident that, when we transfer praise to what is equitable, or to a person, as if to a greater good, we show what is equitable as something better than what is just. Hence, the equitable does not seem to be the same absolutely as the just thing.

1080. On the other hand (if we wish to follow reason), it seems inappropriate if what is equitable is praiseworthy and something over and above the just. It seems necessary either that the just thing is not desirable—that is, good—or that, if what is equitable is different from the just, it is not good, because good (in the law) is achieved in one way, as was pointed out in book 2 [319–21]; or it is necessary that, if both are good, they are identical.

So he infers that a doubt arises about what is equitable on account of the things just stated. On the one hand, it seems that it is not the same, inasmuch as it is praised as better than the just thing; on the other, it seems that it is the same as the just thing, for what is beyond the just apparently is not good and praiseworthy.

1081. Next, at everything said is true (1137b7), he solves the question raised.

He handles this point in two ways.

First, he sets forth the truth.

Second, at what raises the doubt (1137b11; [1082]), he assigns the reason.

He says first that everything that has been said for either side of the doubt is in some way right and that, if correctly understood, no opposition lies hidden there. It is true that what is equitable is one kind of just thing and is better than another just thing, for as was noted before [1016–17], the justice that citizens practice is divided into natural and legal. However, what is equitable is better than what is legally just but is contained under the naturally just. Consequently, it is not said to be better than the just thing, as if it were some other kind of norm distinct from the genus of just things. Although both—namely, the legally just thing and the equitable—are good, the equitable is better.

1082. At what raises the doubt (1137b11), he assigns the reason, treating it in a threefold manner.

First, he assigns the reason for doubt.

Second, at the reason for this (1137b13; [1083]), he indicates the reason for the truth proposed.

Third, at for this reason, what is equitable (1137b24; [1087]), he infers the truth intended.

He says first that this is what raised the doubt—that the equitable is a just thing but is not something legal. It is rather a certain directing of legal justice, for we said [1023] that it was contained under natural justice, from which legal justice has its origin.

1083. Then, at the reason for this (1137b13), he assigns the reason for the truth proposed, that is, why legal justice has need of direction.

He discusses this point from three aspects.

First, he points out a defect in legal justice.

Second, at nevertheless, the law (1137b17; [1085]), he shows that this defect does not destroy the rectitude of legal justice.

Third, at therefore, when (1137b19; [1086]), he infers the necessity for direction.

He says first that the reason legal justice has need of direction is that every law is proposed universally. Since particulars are infinite, our mind cannot embrace them to make a law that applies to every individual case. Therefore, a law must be framed in a universal way—for example, whoever commits murder will be put to death.

1084. In the case of what is necessary, where no defect can occur, it is evident that our intellect can predicate something universally true about some things. But about other things, in the case of what is contingent, it is not possible that something true be predicated universally. Here, even though something is true in most instances, nevertheless it errs, as we know, in a few instances. And of such a nature are human acts about which laws are framed. In these things, the legislator necessarily speaks in a universal way on account of the impossibility of comprehending particulars; however, he cannot be correct in all the situations for which he legislates, since error arises in some few cases. For this reason, the legislator accepts what happens in most cases, but nevertheless is not ignorant that defect is possible in some cases. Thus, the anatomist says that man has five fingers, although he knows that, by a mistake of nature, it happens that, in rarer cases, man has more or fewer.

1085. Next, at nevertheless, the law (1137b17), he shows that the previously mentioned defect does not destroy the rectitude of law or of legal justice. He says that, although a fault may be committed in some cases by the observance of the law, nevertheless the law is good, because that fault is not on the part of the law (since it was made according to reason), nor on the part of the legislator (who legislated according to the condition of the material), but the fault arises from the nature of the thing. Such is the nature of human actions that they are not done always in the same way, but are done otherwise in certain infrequent instances. For example, the return of a deposit is in itself just and good, as it happens in most cases, but in a particular situation, it can be bad, such as if a sword is returned to a madman.

1086. At therefore, when (1137b19), he infers the necessity for directing legal justice. He says that, when the law proposes something in a universal way and the observance is not beneficial in a special instance, reason rightly dictates that a person should correct what is deficient in the law. Where the legislator evidently left indeterminate a particular case (in which the law falls short), he is at fault; that is, he proposed a defective proposition in speaking absolutely or universally. The reason is that even the legislator himself, had he been present where such a case happened, would have determined in this way, and the correction would have been made. Moreover, had he foreseen this from the beginning, he would have put it in the law. But he could not comprehend all particulars; in a certain city, it was decreed under penalty of death that strangers were not to climb the walls of the city, for fear they would usurp the civil government. But, during an enemy invasion, some strangers defended the city from the invaders by climbing the walls. They do not deserve to be punished by death; it would be against the natural law to reward benefactors with punishment. Therefore, in this case, legal justice must be directed by natural justice.

1087. Then, at for this reason, what is equitable (1137b24), he infers the truth intended, affirming that, by reason of what has been said, it is clear what the equitable is. It is a just thing, and it is better than one kind but not better than what is naturally just that is laid down absolutely or universally. Hence, the nature of the equitable is that it be directive of the law where the law is deficient for some particular case. Indeed, the law does fail in particular cases. The reason why not everything can be determined according to the law is that the law cannot possibly be framed to meet some rare particular incidents, since all cases of this kind cannot be foreseen by man. On account of this, after the enactment of the law, a decision of the judges is required by which the universal statement of the law is applied to a particular matter. Because the material of human acts is indeterminate, it follows that their norm, which is the law, must be indeterminate in the sense that it is not absolutely rigid.

1088. He offers an example of a norm for building in Lesbos. In this island, there are certain hard stones that cannot easily be cut by chisel so that they may be arranged in an entirely correct position; therefore, the builders there use a leaden rule. Just as this leaden rule conforms to the shape of the stone and does not stay in the same form, so the sentence of the judge must be adapted to things according to their suitableness. In this way, then, he ends by way of summary that it is clear from the premises what the equitable thing is, that it is something just that is better than one kind of just thing, the legally just.

1089. Next, at from this it is obvious (1137b34), he determines the subject of equity. He affirms that it is evident from what has been proposed [1078–88] who the equitable man is: he who chooses and does the things that have been discussed. He lays down a certain characteristic of this kind of virtuous person. He says that such a one is not acribodikaios—that is, a zealous enforcer of justice in the worse sense—for vengeance, like those who are severe in punishing, but rather like those who mitigate the penalties although they may have the law on their side in punishing. The legislator does not intend punishments in themselves, but as a kind of medicine for offenses. Therefore, the equitable person does not add more punishment than is sufficient to prevent violations.

1090. At and this habit (1138a2), he determines the habit of virtue. He says that this habit, called equity, is a particular species of justice and is not a habit different from legal justice; we said the same about its object, for habits are known by reason of their objects.