Book 05
Chapter 10
How equity and justice are the same and different.

Now let us try to understand what the words 'equity' and 'equitable' mean. These are different from justice itself and the just (person), but, at the same time, the terms just and equitable are quite close to each other. For an example of what we mean, let us go back again to the general awarding spoils to his soldiers. The general can award any amount that he wants, and he will not be breaking any laws. But still, there is an amount which is the right amount to award to each soldier. When that soldier gets that amount, we say that they got their just desserts. We also say that the general was being equitable, or made an equitable division. We are using both 'just' and 'equitable' to talk about pretty much the same thing. So, what exactly is the difference? Well, let us try to work out what it is, and so get a stronger sense of what justice is and what equitability is.

It seems to be the case that, whenever we talk of something as being equitable, that means it is a good thing. Further, things can be more equitable and they can be less equitable. The more equitable something is, the better it is. But then again, we can say the same thing about justice. Well, if both equitable and just are said of the same thing, and they both mean that the thing is good, does that then mean equitable and just are really two words for the same thing? And if not, then we have to ask if there can ever be a case where we would say that a thing is just, but it is not equitable, even though it could have been so.

Further, could we ever say that a thing is equitable, but it is not just? And if so, does that mean that there are things that are just, but they are not good? After all, something not being equitable or just seems to suggest that it is also not good.

We have raised many questions. Now let us sort things out.

Let us start by stating that: What is just is good, what is equitable is good, but what is equitable is always more good than what is just. Further, this is not a case where we have two different kinds of good. For example, what is nutritious is good and what is holy is good, but what is holy is always more good than what is nutritious. OK, but nutritious and holy are two very different kinds of good; we do not talk about the same things as being both nutritious and holy. It is the opposite with just and equitable: we do talk about the same things as being just and equitable. Again, we are not talking apples and oranges here, we are talking apples to apples.

The problem is that the word 'just' is a general term, like the word 'good' is. We can say that something that is great is better than something that is good. But, at the same time, what is great will also be good, itself. So likewise, equitable is better than just, but, at the same time, what is equitable is also, itself, just.

But how is justice by itself not enough? If we get a just outcome, then how is it not the case that everything is as it ought to be? And if everything is as it ought to be, how can equitability make it any better?

Well, most of the time, when we follow what the law says, things will be as they ought to be. But there are cases where following exactly what the law says does not fulfill the intention of the law. In those cases, following the law does give you legal justice, it does give you something. But it does not give you absolute justice.

The law itself is not in error; the law itself does not fail to deliver justice. What happens is this: the legislator takes up some matter, considers what cases may come up, and sets down a law that ought to both (1) make clear the intention of the law and (2) give something that can be applied in most every case that comes up. But, as a practical matter, it is simply not going to be possible for legislators to make all laws cover all cases. And where the law does come up short, it is still, nonetheless, correct. What one gets in those cases is still legal justice. What more that is required is for the court to assist the law and fill the gap.

What a judge must do in such cases is this: consider what the legislator intended for the law to accomplish, consider the particulars of the case, and then make a ruling that fulfills the intention of the law. This is equitability.

The equitable is just, because it would be a law if it were possible. The equitable is better than the typical, human justice of sticking to the letter of the law, but it is not better than perfect, or ideal justice. Now, that is a bit confusing, so let us be more clear. Justice is not necessarily perfect, any more than any human action is perfect. Still, we humans strive towards perfect justice with the laws of the State, and make laws to cover most cases, though the laws will end up coming up short in some way. And so, laws must be amended and courts must make rulings as well to rectify matters. Still, human justice really is justice, and yet equitability is superior to that, since it is closer to perfect justice.

Further, there are even some things for which no law can be set down, and yet we still do have a way to get justice: by decrees. The reason why laws do not cover everything is the same reason why tailors measure the body with their special flexible tape. All bodies are different, and it would be impossible to accurately measure them all with something rigid, like the carpenter's rule. So likewise, it is impossible to cover all cases with a rigid law. So, again, we have the decree, which is like the tailor's cloth tape, in that it is adapted to the special cases as the cloth tape is adapted to the body.

To wrap up: we have figured out what it means to be equitable, and found that equity means justice, it is a kind of justice that is better than basic justice, in the sense of keeping within imperfect, human laws. And the equitable person is one that can see what would make for an equitable resolution to a situation, and then take action to make that happen. This person is not cheap and does not use the law in their favor to take more than what is equitable (even when they could get away with it). Rather, this person is ready to take less than what they could, but it is the right thing to do, and it is how they would want to be treated if the situation were reversed. This is the character of equitableness, which is a sort of justice, and not something separate from justice.


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