An Appeal to Equity

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Four Theses:  Preliminary to an Appeal to Equity

Darien Shanske, Author

[Draft – Final Version Published 57 Stanford Law Review 2053 (2005)]

“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.”

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, in federal procedure, in environmental law, in international law, and, most naturally, in sentencing.

 There is even an argument that maintaining the health of equity is a constitutional obligation. 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 future better appeals to equity through 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.

Read the entire publication: Four Theses:  Preliminary to an Appeal to Equity