A just society prizes equity.
Seeking it — achieving it — require careful thought and effort. Unfortunately, that does not always happen.
How can we prevent a concept as important as “equity” from devolving into a catchphrase?
“I Put That S**t On Everything”
One measure of a catchphrase is its memorability. Here, Frank’s Red Hot Sauce stands out for it slogan, “I put that s**t on everything.”
Catchphrases, of course, find traction in fields beyond consumer goods. Politics, academia, and law are no exceptions.
One such phrase making the rounds is “equity.” To paraphrase Frank’s Red Hot Sauce, some people put that stuff on everything.
This hurts rather than helps our building a more equitable society. That’s because sloppy or overbroad use of “equity” diminishes its meaning and moral force.
“Where’s the Beef?”
Often, slogans or expressions simply trigger a mood or association. In other cases, the goals and effects go deeper.
Current advocates for “equity” call for profound changes to government, law, business, and society. Under such circumstances, it’s important to understand what “equity” has meant traditionally. It’s also right to ask those calling for “equity” to explain how their use of the term does or does not fit traditional meanings.
In other words, to borrow a catchphrase from the famous Wendy’s commercial, when it comes to “equity,” “Where’s the beef?”
Doing Justice Where Remedies at Law Are Inadequate
Our traditional notion of equity took root in 13th-14th century England. Where remedies under the common law or statute proved inadequate to do justice, subjects might petition the Chancellor, at that time the king’s principal minister, for relief.
Typically, common-law courts limited themselves to awarding money damages and ordering the return of property (including the possession of real property). Such awards could not, for example, compel the seller in a land-transfer contract to complete the sale, nor enforce trusts, nor enjoin someone from committing a wrongful act going forward for which money damages would not suffice (such as destroying a stand of old-growth trees).
Petitions to the Chancellor became formalized through courts of equity under his jurisdiction.
Safeguarding Justice By Keeping Equity Within Bounds
Early on, the Chancellor and his equity-court judges had wide discretion effectively to ignore or refashion the law on an ad hoc basis. “Equity” thereby threatened the political and judicial systems, placing itself outside and above Parliament and the law courts.
Arising as a concept and institution to do justice, “equity” had the potential to do great injustice. Consequently, over time, boundaries arose to prevent “equity” from swamping other political, legal, and societal institutions and rights.
Limited in Jurisdiction
For example, equity-court jurisdiction became limited to cases where remedies at law were inadequate.
Constrained By Precedent
Equity courts also became bound by their own precedent, having to decide like cases in like manner.
Available Only To Those Acting Fairly And Reciprocally Themselves
The above limits often found expression through maxims.
Such maxims also dealt with a petitioner’s entitlement — based on fairness and reciprocity — to equitable relief. For example, “One must come to equity with clean hands,” meaning that a petitioner seeking equitable relief must not have done wrong him or herself.
One Who Seeks Equity Must Do Equity
Another equitable maxim is that “one who seeks equity must do equity.” Thus, whoever seeks equitable relief must be willing to fulfill all of his or her own obligations.
Many people these days rightly and understandably call for equity. Such people must therefore also do equity.
At a minimum, this means explaining why equity — traditionally understood — entitles them to relief. And if not, why traditional equitable principles should not apply to them.
Equity does not represent a novel concept or goal. It is our shared 800-year-old inheritance. To safeguard and it nurture it, we must first understand and respect it.