The Paradox of Equity

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  Editorial ommittee of the ambridge Law Journal   The Paradox of EquityAuthor(s): John TasioulasSource: The Cambridge Law Journal,  Vol. 55, No. 3 (Nov., 1996), pp. 456-469Published by: Cambridge University Press on behalf of Editorial Committee of theCambridge Law JournalStable URL: 07-10-2019 00:31 UTC   JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a widerange of content in a trusted digital archive. We use information technology and tools to increase productivity andfacilitate new forms of scholarship. For more information about JSTOR, please contact Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at Cambridge University Press, Editorial Committee of the Cambridge Law Journal   arecollaborating with JSTOR to digitize, preserve and extend access to The Cambridge Law Journal  This content downloaded from on Mon, 07 Oct 2019 00:31:40 UTCAll use subject to   Cambridge Law Journal. 55 3), November 1996, pp. 456-469  Printed in Great Britain  THE PARADOX OF EQUITY  John Tasioulas*  Martha Nussbaum's recent article Equity and Mercy eloqu  advocates the continued relevance of a tradition of ethical and thought—the equity tradition —that has been neglected by l  philosophers in recent times.1 That neglect is partly due to th that contemporary legal philosophy (as in the debate between Hart and Ronald Dworkin) has concerned itself with the prior quest  of whether judges should or need to exercise discretion. The e  tradition presupposes an affirmative answer to that question where rigorous application of a law yields a sufficiently grave injustice in circumstances of a particular case or where such an injustice arise because of a gap in the law. Yet it might have been th  prudent for those who assert the ineradicability and value of adjudi  tive discretion to have embraced and developed the idea of eq  For, in addition to endorsing the idea of adjudicative discr  the proponents of the equity tradition have also sought caref  to plot the limits of its legitimate employment. In so do  they help undermine what Hart identified as a key strate  the opponents of discretion: the tendency to elide the distinc  between judicial discretion and the arbitrary imposition of a ju  will.2  School of Law, University of Glasgow. I am indebted to Catriona Drew, Rob Dunbar and Hilary  Hiram for comments on an earlier version of this article.  Martha C. Nussbaum, Equity and Mercy (1993) 22 Philosophy and Public Affairs 83. All  otherwise unspecified page references are to this article.  Indeed, taking equity seriously would be one way of elaborating Hart's remark that even when  legal rules provide no determinate guidance judges do not enjoy a completely unfettered discretion,  but are instead subject to a wide variety of individual and social interests, social and political  aims, and standards of morality and justice . H.L.A. Hart, Problems ofthe Philosophy of Law , in Essays in Jurisprudence and Philosophy (Oxford, 1983), p. 107. Note, however, that the equity  tradition—at least as classically formulated in Aristotle's description of equity {epieikeia) as a  correction of law where it is defective owing to its universality —does not (like much of  contemporary legal philosophy) confine its attention to judicial discretion attributable to gaps in the law, but encompasses also the notion ofa remedial discretion where the generality of legal rules yields an injustice in the circumstances ofa particular case. See Aristotle, The Nicomachean Ethics 1137b26-27, trans. W.D. Ross (Oxford, 1980), p. 133. For an elaboration of this last point,  see Roger A. Shiner, Aristotle's Theory of Equity , in S. Panagiotou (ed.), Justice, Law and  Method in Plato and Aristotle (Edmonton, 1987), pp. 177-179.  456 This content downloaded from on Mon, 07 Oct 2019 00:31:40 UTCAll use subject to   CL.J The Paradox of Equity 457  I. The Asymmetry of Mitigation and Aggravation  In this paper I do not try to do justice to all the strands in Nussba  rich and wide-ranging article. Instead, I focus on her explanati  the asymmetry between mitigation and aggravation in the tradi  understanding of equity. As Nussbaum observes, in line with a clas tradition of thought about equity, there is a tendency to associate effect of equity with the mitigation of the requirements of strict l  the particular case (and so, by an extension that need not conce  here, with the ameliorative value of mercy), rather than with aggravation. But this seems paradoxical. For if equity inv  attending to the particular circumstances of a case in order to rem the injustice that would be caused by the strict application of a gen  rule to those circumstances, then it would be natural to expect  equity should sometimes lead us to augment the severity of the  e.g. in the case of an especially despicable criminal for whom,  matter of justice in all the circumstances, the legally stipulated pe  is too lenient. Hence, the asymmetry in the effect of equitable discr  presents us with a paradox.3  Nussbaum seeks to resolve this paradox by invoking an emp  hypothesis about the likely causes of the failure to meet the standa  enshrined in positive law. According to this hypothesis, the ins  of wrongdoing attributable to the exceptional blameworthiness of perpetrators are greatly outnumbered by those that arise fro  various impediments human life places in the way of compliance  the legally posited standards of justice. These impediments in  ignorance, a defective upbringing, and the lure of competing inter  and values. On this view, we associate equity with mitigation r  than aggravation because it is statistically far more likely, give  impediments to good conduct inherent in ordinary human life,  the outcome of particularised judgment will be to temper rather th strengthen the force of law in actual cases. As Nussbaum puts it:  In effect, the asymmetry arises from the fact that the circumst  of human life throw up many and various obstacles to mee  the tough standards of justice; if we set a high standard of action, the very course of life will often make it difficult for m  human beings to measure up. To put it another way, asymmetry arises from a certain view about the common or lik  causes of wrongdoing: the asymmetrist claims that a cert  number of wrongful acts are fully deliberate wrongs and t  certain number are produced by obstacles such as failur  knowledge, mistaken identification, bad education, or the prese  ofa competing moral claim. There may be some cases of parr  P. 87. This content downloaded from on Mon, 07 Oct 2019 00:31:40 UTCAll use subject to   458 The Cambridge Law Journal [1996]  and incest that are produced by an especi  blameworthy degree of hatred or wickedness, responsible deliberateness assumed by the law  that this is likely to be a smaller class than the given the character of human life and the n  motivation.4  Nussbaums claim that equitable judgment exhi of mitigation and aggravation would appear to be  least in criminal cases.5 For instance, departures fr  in the name of mitigation often seem acceptable  strike us as laudable—with respect to such matters deciding whether to initiate prosecutions. By contra established rules in the opposite direction would app  troubling. For consider what such judgments imposition of criminal liability with respect to a did not attract such liability under pre-existing l  the scope of existing offences to acts or omissio  within their manifest terms; and the imposition than those stipulated by existing law. Therefore,  accept Nussbaums suggestion that the effect o asymmetry along the dimensions of aggravatio  However, the explanation she offers of that asy  compelling.  Leaving to one side the possibility that Nussbaum's description of  the paradox in the passage quoted above conflates true cases of equity  (which involve the discretionary modification ofa rule that is essentially just) with the situation where the rule itself is defective because it sets  an unrealistically demanding standard of conduct,6 I suggest that  her solution is excessively empirical to be a complete explanation of  the asymmetry. For although it may explain why in the majority of  cases we would expect equity to have an ameliorative effect on the  application of criminal law, it does not explain our resistance to  the discretionary aggravation of the law's requirements in all  cases, including the supposed minority of cases where her general  explanation is inapplicable. For example, Nussbaum's explanation  P. 91.  The asymmetry is not so immediately applicable to civil cases. Because of their bilateral nature,  amelioration for one party tends to result in imposing tougher standards on the other. By contrast  criminal trials do not exhibit the same bilateral character: in Nussbaum's view, they are about  the defendant and what will become of him or her and not about the victim as well (p. 121  n. 93). 1 therefore concentrate in what follows on the criminal law context, which is also  Nussbaum's primary focus (see in particular her discussion of sentencing at pp. 115-122).  I assume here that an ethically acceptable standard of conduct must be such that compliance with  it does not outrun or excessively tax ordinary human capacities. See James Griffin, Moral Law,  Positive Law , in J. Tasioulas (ed.), Law, Values and Social Practices (Aldershot, forthcoming).  lt may be, however, that Nussbaum's reference to the tough standards of justice is to be  understood in the specific context of her discussion ofthe archaic conception of dike (pp. 88-92). This content downloaded from on Mon, 07 Oct 2019 00:31:40 UTCAll use subject to


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