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What is Equity and Equitable Justice?

The Origins of Equity

Imagine for a moment that you live in a primitive society where there are no formal laws, judges or courthouses. Now suppose you have a disagreement with your neighbor. How will you resolve it? Assuming you're not going to fight each other with sticks and stones, you might agree to let a village elder decide who is right.

The elder has no laws to rely upon, so he must use his experience, common sense and morality to reach a decision that is fair and compensates the injured party. The elder is using principles of equity to bring about justice.

Equitable justice is different from justice that relies strictly upon laws. A judgment "at law" is based upon applying laws and legal precedents to the facts of a particular case. However, even in ancient times, people realized that strictly applying the law didn't always lead to a fair result.

The earliest written evidence of equitable justice is in the ancient Mesopotamian Code of Hammurabi, which is better known for its harsh "eye for an eye, tooth for a tooth" rules. Trial transcripts from Assyria, Nineveh and Chaldea include this reference to equity: "He who listeneth not to his conscience, the judge will not listen to his right." Moreover, early civilizations established an important equitable right that would be repeated centuries later in England: the right to appeal an unjust result to the king.

In ancient Greece, Aristotle thought about equity as early as the 4th Century BC, writing that equity "gives the law that flexibility in which it has been accused of failing: through equity, law is alive to the play of circumstances; through equity, it can meet new stimulus with an answering reaction."

You may recall from your history textbooks that ancient Greece was a model of democratic lawmaking. But why weren't the laws written to provide justice? In his essay, Rhetoric, Aristotle explains:

"Suppose the legislature passes a law penalizing the wounding of a person with an iron instrument. Since a description of all of the sizes and kinds of iron instruments would be endless, the legislature simply makes a universal rule: Wounding with an iron instrument is illegal. However, in the case of a person who strikes another while wearing a ring, the person would be 'guilty of a wrong under the written law, but not in reality' presumably because a mere ring (unlike, say, an iron sword) does not fall into the class of dangerous iron instruments. In this situation, equity would intercede to acquit the ring-wearer of violating the law dealing with iron instruments."
Equity was also a part of the legal system in ancient Rome, and equitable ideas were transported to England, where they formed the beginnings of modern equity.

Continue reading (page 3 of 7) …Roots of Modern EquityThe Roots of Modern Equity      
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