In the tenth section of the fifth book of The Nicomachean Ethics, Aristotle discusses “equity” — which is either a corrective exception to Justice or its culmination, depending on how you look at it.
(I’m covering section ten before section nine because sections nine and eleven seem to go together. The way The Nicomachean Ethics was stitched together has left some odd seams, and this is one of them.)
Justice, Aristotle has said, concerns following the accepted legal principles of the community, on the one hand, and in being fair in interpersonal transactions (that is, not seeking to come out ahead at the expense of the person you’re transacting with) on the other.
But what about those cases in which a strict adherence to law or to transactional proportionality seems wrong — when mercy or charity or just the peculiar circumstances of some particular case would seem to require us to make an exception to the law or to authorize an unproportional transaction?
Cases like this require “equity.” In some sense, equity is outside of justice — something that corrects for the inevitable lack of foresight of any oversimplified systematization of justice. In another sense, it’s not apart from justice, but an important part of justice: the particular fine-tuning of justice that treats the explicit rules as guidelines and applies the spirit of the law to the circumstances of a particular case.
Aristotle says that equity isn’t a virtue all its own, but that people with the virtue of justice ought also to have the virtue of equity. There really is no thing as equity without justice, but equity with justice is better than justice without equity (which may not be just at all).
This section of the Nicomachean Ethics doesn’t actually define equity, but several in my panel of translators suggested that readers refer to Aristotle’s Rhetoric, and one of them (Grant) was nice enough to include the following passage, in which Aristotle defines equity in an almost psalmic way:
It is equity to pardon human failings, and to look to the [intentions of the] lawgiver and not to the law; to the spirit and not to the letter; to the intention and not to the action; to the whole and not to the part; to the character of the actor in the long run and not in the present moment; to remember the good rather than evil, and good that one has received, rather than good that one has done; to bear being injured; to wish to settle a matter by words rather than by deeds; lastly, to prefer arbitration to judgment, for the arbitrator sees what is equitable, but the judge only the law, and for this an arbitrator was first appointed, in order that equity might flourish.
I was reminded a bit of the labyrinthine codes of conduct associated with Wikipedia editing. There is a set of rules (“Wikipedia policy”) which have the force of laws, in the Aristotelian sense of a set of codified dicta that govern the community. But there are also several parts of the Wikipedia code of conduct that have the same superficial format as these laws but that counsel equity rather than codify laws, for instance:
- Stay cool
- Assume good faith
- Ignore all rules (“If a rule prevents you from improving or maintaining Wikipedia, ignore it.”)
The word Aristotle uses for equity is “ἐπιείκεια” (epieikeia); Grant says that in Aristotle this word “has a close connexion with what is called γνώμη [gnome] (consideration)” — for what that’s worth.
See The Picket Line, , for a discussion of the eleventh section of the sixth book of The Nicomachean Ethics, in which Aristotle discusses γνώμη.
I don’t much see people use the word “equity” in the sense that Aristotle is using the word “ἐπιείκεια” here (I more often see it used in finance, or as a synonym for impartiality or justice; it also now has a specialized use in describing a system of law). I may be hitting a disadvantage of relying on older translations.
In 2 Corinthians 10 the term shows up and gets translated “gentleness,” “softness,” and the like; in Acts 24 the term becomes “clemency,” “kindness,” “courtesy,” and such; “επιεικες” also shows up in Philippians 4:5 and gets “gentleness,” “moderation,” “forbearance,” and so forth. These won’t work for us here, I don’t think, as they all imply a merciful lessening of legal sanction, whereas I think Aristotle’s use of the term could go in either a more-merciful or a more-severe direction depending on circumstances. Matthew Arnold thought “sweet reasonableness” was a good English rendering of the term, as it was used to describe Jesus in Corinthians, and thought that it was characteristic of “true Christianity” and the secret to its persuasive power.
In Greek, Welldon notes, “επιεικής [epieikis] means ‘virtuous’ as well as ‘equitable’ ” which causes its own problems for Aristotle (though not as much for us). He takes pains to distinguish the particular sub-virtue of equity from its parent virtue of Justice and from Virtue in general, in part because of this confusion in Greek.
But, stepping back from the translation tangle, one last look at the argument: Aristotle is saying that while codified and explicit laws are important, they are only rough approximations of justice that suggest but shouldn’t constrain the application of real justice in real-life circumstances. Explicit law should be flexible and should state guiding principles rather than trying to anticipate and micromanage future events.
It seems to me that today’s law, at least in the United States, has become absurdly rigid by this standard, leaving little discretion to judges or juries (“mandatory minimums,” “zero tolerance,” and so forth), though I also understand the pressures that moved us in this direction. It’s probably largely due to us being a quasi-nation rather than a polis, and there being little hope of us having some shared vision of justice, making the discretion of individual judges and juries seem frighteningly arbitrary and giving us little guidance on how to behave. For this and for more base reasons we reward legislators who write laws that micromanage yesterday’s tragedies tomorrow with a comforting precision and certainty.
But it is not as though there were no discretion or opportunities for “equity” built in to the system, it’s just that these things are less in the hands of judges and juries and more in the hands of police and prosecutors, who, in my opinion, have even more frightening and pernicious biases in this regard. This, anyway, seems to be the case with criminal cases; in civil cases we have arbitration (which I don’t know much about) and plaintiff discretion/deterrence-through-cost.
Index to the Nicomachean Ethics series
Aristotle’s Nicomachean Ethics
- Book Ⅰ
- Book Ⅱ
- Book Ⅲ
- Book Ⅳ
- Book Ⅴ
- Book Ⅵ
- Book Ⅶ
- Book Ⅷ
- Book Ⅸ
- Book Ⅹ