Version: v1, Published online: 1998
Retrieved May 30, 2020, from https://www.rep.routledge.com/articles/thematic/justice-equity-and-law/v-1
Laws are intended to achieve justice, but the application of an otherwise just law may yield an injustice in the circumstances of a particular case. This is because laws are framed in terms of general rules which cannot adequately provide in advance for all possible variations in relevant circumstances. Equity modifies the rigid application of the law in such cases in order to secure justice in the light of all the relevant circumstances. So, in Aquinas’ example, the law may justly require the closure of the city gates after a certain hour, but officials may equitably decree the opening of the gates during the legal hours of closure in order to save fighters defending the city who are being pursued by an enemy. In this sense, the equitable decision is not distinct from justice, but rather secures justice in the particular case by remedying the deficiencies of positive law retrospectively at the point of application. The question of the proper relationship between justice, equity and law has been explored both by a rich philosophical tradition that finds its classic statement in the writings of Aristotle, and by the world’s major legal traditions.
At least two major problems arise for this complex of ideas. First, that of the ‘decadence’ of equity. As equity is incorporated into formal processes of legal adjudication, for instance in the form of ‘maxims’ of equity or equitable ‘doctrines’, it comes to acquire the generality of positive law. This creates the problem that the so-called equitable maxims or doctrines may themselves then be applied in a strict way that leads to injustice in the particular case, which is precisely the problem equity is meant to remedy. Second, in securing justice by the deployment of discretion in the particular case equity also threatens an injustice. For it seems to involve a departure from the principle of legality, that is, the duty to apply pre-existing laws declared beforehand to those subject to them. In being adversely affected by the retrospectively operative discretion of the adjudicator, the party who would have benefited from the strict application of the law may regard the resort to equity as itself unjust.
Tasioulas, John. Justice, equity and law, 1998, doi:10.4324/9780415249126-T006-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/justice-equity-and-law/v-1.
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