The Concept of Equity: Part 2

In my previous post on the concept of equity, we took a brief (and very simplified) look at this complex term and learned that:

  • Equity can be understood in opposition to a very narrow sense of the concept of common law.
  • In that sense, its meaning is related to its historical origins.
  • Its historical origins can be traced back to Middle Ages England.
  • At one time, some jurisdictions in the United States also had equity courts.
  • Equity courts gave rise to rules and principles that still exist today.
  • Equity courts also gave rise to remedies that continue to exist to this day.
  • All that, in turn, gave rise to language we, translators, must thoroughly understand.

Let’s recap: in the sense we've explored so far, equity refers to certain doctrines and remedies that first originated in the English courts of equity, specifically at the Court of Chancery. You’ll recall I gave you some examples of that sense of the term:

But that’s only a very small slice of the equity pie.

While we can trace equity courts back to Middle Ages England, the concept of equity itself in the Western world goes back much further, specifically to Aristotle’s Nicomachean Ethics. And despite the temporal and conceptual distance between Aristotle's concept of equity and the concept of equity as used today, looking at Aristotle’s definition can be helpful because, “it represents a highly influential idea about what equity means—equity is about the exceptional case, the unforeseen circumstance, the extension of a law to a case that is within its spirit but not quite within its letter” (Bray 2016). 

It’s also important because even though it’s a philosophical sense of the term, courts will use equity in the philosophical sense in their judgments and lawyers will use it in that same sense in their arguments. So let’s take a closer look. To keep it simple, we’ll call this philosophical usage, Sense 2.

Let’s start by taking a look at what Aristotle had to say about equity, specifically what Bray cited:

[t]he equitable is just, but not the legally just but a correction of legal justice. The reason is that all law is universal but about some things it is not possible to make a universal statement which will be correct. In those cases, then, in which it is necessary to speak universally, but not possible to do so correctly, the law takes the usual case, though it is not ignorant of the possibility of error. And it is none the less correct; for the error is not in the law nor in the legislator but in the nature of the thing, since the matter of practical affairs is of this kind from the start. When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then it is right, when the legislator fails us and has erred by over-simplicity, to correct the omission—to say what the legislator himself would have said had he been present, and would have put into his law if he had known. Hence the equitable is just, and better than one kind of justice—not better than absolute justice but better than the error that arises from the absoluteness of the statement. And this is the nature of the equitable, a correction of law where it is defective owing to its universality. (Aristotle n.d.)

So why did Bray choose this particular passage to illustrate how Aristotle’s conception of equity plays into modern law? Bray believes it gives us a specific sense of equity that was later captured in William Blackstone’s conception of the “equitable interpretation” of a statute. And that sense of equity is one where, “judges […] are at liberty to expound statute by equity, and only quoad hoc [i.e., as to this] disregard it” (Blackstone n.d.). In this Aristotelian sense, equity is like justice but better (see Aristotle, op. cit.). 

Bray points out yet another sense of the term as “a moral reading of the law” that in his view is distinct from Aristotle’s and he posits that these two senses sometimes overlap. Though he makes a strong case, for translators trying to understand the concept of equity for the first time (and figuring out how to translate it!) Bray’s argument can be rather abstract and hard to follow. So I won’t go there for now. Instead, I want to focus on what is important for translators.

What you need to know at this point is that you’ll often find the term equity in legal contexts, but used in a moral sense. If you’re a Spanish translator like me, this is when you would translate the term as equidad. Let’s look at some examples:

So far, we’ve explored two senses of the term equity. 

Sense 1, which relates to the term’s historical origin in the Common Law world and Sense 2, which relates to its historical origin in Western moral philosophy. 

Both appear in translation, even today. Both have separate translations, but neither fully captures the way the term is used in legal contests. There’s more. And in my next post, we’ll explore one more key sense in which legal translators face this complex term. 

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Works Cited

Aristotle. n.d. "Nicomachean Ethics." In 2 The Complete Works of Aristotle, by J.O. Urmson.

Blackstone, William. n.d. "Commentaries on the Laws of England." Online Library of Liberty. Accessed July 2020. https://oll.libertyfund.org/titles/blackstone-commentaries-on-the-laws-of-england-in-four-books-vol-1.

Bray, Samuel L. 2016. "A Student's Guide to the Meaning of "Equity"." OSF. July 20. Accessed July 2, 2020. https://osf.io/sabev/.

 

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