...Equity, rightly understood, is a concept with deep roots in the Western philosophical, political, and jurisprudential tradition. More importantly, it is a concept that is essential to a just and prudent political order. Far from being an alien concept in Western philosophy, equity has been considered an integral aspect of justice by virtually every political and legal theorist.
There is an ancient Roman maxim that declares summum jus, summa injuria—plausibly rendered "the extremity of the law is extreme injury." This maxim summarizes the legal concept that underlies equity, rightly understood.
Greek and Roman legal theory distinguished between jus (law) and aequitas (equity). The distinction is rooted in the recognition that, at times, the law as written is ill-suited to render justice in a concrete circumstance, due to the peculiarities of the case. It recognizes that the letter of the law sometimes needs to be supplemented or corrected by common sense or natural law, thereby avoiding the “extreme injury” that can be caused by an overly zealous application of the written law.
<snip background from Aristotle through Blackstone>
There are three primary takeaways for conservatives from this account of equity.
First: In practice, equity recognizes the inherent messiness of history and the contingency of human affairs, as well as the central role that the moral imagination and prudence serve in the achievement of justice....
Second: Because equity appeals to the moral imagination and common sense to rectify defects in the written law, it presents an inherent challenge to legal positivism and to progressive politics rooted in postmodern social theories of power....
Finally: When it is rightly understood, the concept of equity is not an illegitimate interpolation in our constitutional heritage or our received idea of justice. Equity as an aspect of justice possesses deep roots in our heritage—roots that cannot be cut without serious loss....
The Law and Justice Room
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Originally Posted by RMNIXON
