Four theses: preliminary to an appeal to equity.

• Author: Shanske, Darien

INTRODUCTION I. ARISTOTLE ON EPIEIKEIA II. THESIS 1: ARISTOTELIAN EQUITY HAS BEEN RECEIVED INTO WESTERN LAW NUMEROUS TIMES, AND THIS RECEPTION IS ONGOING III. THESIS 2: ARISTOTELIAN EQUITY IS NOT PRIMARILY LEGAL IV. THESIS 3: THERE IS NO UNIFIED CONCEPT OF EQUITY A. Equity and Logic B. Equity and Process C. Equity and Substance D. Equity and Politics E. Equity in History F. Equity as Metaphysical V. THESIS 4: THE PRIMARY ASPECTS OF EQUITY HAVE METAPHYSICAL GROUNDS A. Kant and Hegel on Equity B. Metaphysical Grounds of Aristotelian Equity C. Critique of Some Contemporary Returns to Aristotle CONCLUSION Equity is justice in that it goes beyond the written law. And it is equitable to prefer arbitration to the law court, for the arbitrator keeps equity in view, whereas the judge looks only to the law, and the reason why arbitrators were appointed was that equity might prevail. (1)

INTRODUCTION

Clarity on the meaning of equity is a precondition for an appeal to equity--or at least it ought to be. There have been many recent appeals for more equity (or at least no less) in arbitration, (2) in federal procedure, (3) in environmental law, (4) in international law, (5) and, most naturally, in sentencing. (6) There is even an argument that maintaining the health of equity is a constitutional obligation. (7) It is not uncommon for these appeals to make some attempt to define what is meant by equity, usually through an argument based on history or authority, particularly that of Aristotle. Given the place of precedent in our system, history is clearly not only of antiquarian interest. Sometimes contemporary appeals to equity also assume a kind of analysis of equity, namely that there is an essential concept of the equitable, which, again, is generally assumed to have been first discovered by Aristotle.

This Note aims to enable better appeals to equity in the future by advancing four theses about the history and the concept of equity. The four theses are as follows:

(1) Aristotle's account of equity has been received into the legal tradition many times and this reception is ongoing today.

(2) Aristotelian equity is not primarily legal.

(3) There is no unified concept of equity.

(4) The primary aspects of equity have metaphysical grounds.

Because there is neither a unified concept, nor a direct evolutionary history, nor a simple account--namely Aristotle's--which would allow one to bypass the confused reality of the tradition, appealing to equity is more fraught than is commonly recognized. Equity should be appealed to, but only after it is clear what aspect of equity is being discussed and in what broader context.

The confusion as to what we are discussing when we say "equity" could be covering up some important issues, or at least questions. The association of arbitration with equity, for example, goes back to Aristotle, a tradition even now referred to by one of the leading institutions and industries involved in arbitration, namely the securities industry (see the quotation preceding this Note). However, if we assume, following Roscoe Pound, that the twentieth century began with equity in decline, then what does it mean that it later saw a great flourishing of arbitration? (8) Was Pound wrong, or has equity been revived along with arbitration? Or is modern arbitration somehow inequitable? Or were Pound's concerns simply of no relation to what Aristotle meant when he associated equity with arbitration?

More concretely, the Supreme Court seems to be under the impression that arbitration is merely a change in forum that affects no substantive rights. (9) How can this be when a leading arbitration organization celebrates the role of equity in contrast to law? Is not one of the primary justifications for arbitration, also recognized by the Court, (10) that arbitrators can bring localized knowledge and expertise to bear on a problem? These questions are hardly insoluble. It is possible that the Court understands the reality of contemporary securities arbitration is other than what the opening quotation to its rules would suggest. Or perhaps it is the case that arbitration has become (or should become) more legal and less equitable. Or perhaps different rationales apply to different contexts. But none of these or other solutions can be adopted without first getting clear on what equity means.

This Note has a spiral structure, with Aristotle's account of equity the central point to which we will return again and again, each time deepening our reading. Before we can sketch out the historical moments in which Aristotle's account of equity has been received, I will present a brief discussion of what it is that Aristotle says about equity. After sketching the various receptions (Thesis 1), I will return to Aristotle to make the argument that despite its centrality to our legal tradition, Aristotle's notion of equity was not primarily a legal notion in our sense (Thesis 2). At this point, equipped with a deeper reading of Aristotle and some sense of the richness of the equity tradition, I will collect the various aspects of equity that have been important to the tradition (Thesis 3).

Finally, this catalog will make clear what was already implicit, namely that until recently equity was not appealed to as a merely logical or procedural idea or even as another body of substantive rights. Rather, the equity tradition is a tradition of appealing to a particular metaphysics, though not always the same metaphysics (Thesis 4). By metaphysics here I mean primarily an appeal to an argument as to what there is (i.e., an ontology), but also to what is the proper role for humans given what there is (i.e., a conception of the good life, an ethics). We will also see, relatedly, that such appeals out of the law have political implications, and these should also be attended to.

1. ARISTOTLE ON EPIEIKEIA

   There is general agreement that the equity tradition begins with Aristotle. Yet like any true beginning, thinking about equity actually starts earlier; there is no creation ex nihilo, and, as Aristotle demonstrates in the characteristic manner in which he begins his works, one needs to start from one's predecessors. The tradition of epieikeia, the word now translated as "equity," begins in Homer, where epieikeia and its cognates means what is appropriate, as when Achilles, hosting the funeral games in Book Twenty-Three of the Iliad, argues that it would be epieikeia to give a prize to the warrior who came in last. (11) These games, and particularly Achilles's conduct in leading them, represent Achilles's reabsorption into his community after his brooding, treasonous, and then murderous rage. Another especially striking instance of epieikeia is in Book One of the Iliad, where Zeus insists that he tells Hera all that is epieikeia for her to hear; (12) Hera is not pacified by this and is certain that Zeus has been scheming against the Greeks. (13) She persists in questioning him and Zeus then threatens her with violence, reminding her that all the gods on Olympus could not save her should he attack her. She drops the subject. (14) Zeus's threat is a reminder that the alternative to an agreement on epieikeia may well be a resort to force.

   By the fifth century B.C., the rhetorician Gorgias contrasted "mild epieikeia" with "stubborn justice [dike]." (15) The historian Thucydides also contrasts epieikeia and justice, and Hobbes translates epieikeia sometimes as "equity" (16) and sometimes as "lenity." (17) Fourth-century orators also appeal to epieikeia, though they do not give it a consistent technical sense--contrary to what one might have assumed based on Aristotle. (18) For instance, Demosthenes asks whether and how an opponent can claim to be a man of epieikeia, that is, a man who does what is proper. (19) In Against Meidias, (20) Demosthenes uses epieikeia to mean leniency, urging none to be shown to his opponent, though not long after, he explicitly offers a "sign" of his own epieikeia. (21) Thus in one speech Demosthenes uses epieikeia in the sense of propriety, which he claims for himself, and also in the sense of something less strict than law, which he wishes to deny to his enemy. The two senses can be seen as continuous insofar as one does not deserve epieikeia if one is not oneself a man of epieikeia.

   There are two main discussions of epieikeia in the works of Aristotle, with his discussion in Book Five, Chapter Ten (*V.10) of the Nicomachean Ethics the more famous and influential. (22) Nevertheless, the treatment of epieikeia in *I.13 and *I.15 of the Rhetoric is in many ways fuller. (23) I will begin by sketching out the main points Aristotle makes about epieikeia in the Ethics.

   First, Aristotle states that epieikeia is a "correction of legal justice," though it is not itself legal. Second, he explains the need for this corrective as a product of the necessarily general nature of legal rules. Third, in deciding just how to correct the general law, Aristotle instructs us to look to how the lawmaker would have decided this case had he been aware of it. Fourth, Aristotle recognizes that not all can be determined by law, and it is in this regard that he offers the image of the leaden measuring device used by Lesbian builders. This measuring device is made of lead and can be bent to the shape of a stone, whereas an ordinary straight ruler cannot, and thus this is the device one uses to measure a piece of stone without a straight edge. So too, specific decrees (versus general laws) can be issued to meet the specifics of a case. Finally, the person who is characterized by epieikeia is he who does equitable things both by choice and habit, is not a "stickler for his legal share," and is indeed willing to accept less even when he has law on his side. (24)

   It is easy to see what is so appealing about this account. Aristotle provides a method (look to intentions) to solve a necessary problem (the connection of the general to the...