The Paradox of Equity

Editorial Committee of the Cambridge Law Journal
The Paradox of Equity

Author(s): John Tasioulas
Source: The Cambridge Law Journal, Vol. 55, No. 3 (Nov., 1996), pp. 456-469
Published by: Cambridge University Press on behalf of Editorial Committee of the
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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" eloque

advocates the continued relevance of a tradition of ethical and l
thought—the "equity tradition"—that has been neglected by le
philosophers in recent times.1 That neglect is partly due to the
that contemporary legal philosophy (as in the debate between H
Hart and Ronald Dworkin) has concerned itself with the prior questi
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 w
arise because of a "gap" in the law. Yet it might have been tho
prudent for those who assert the ineradicability and value of adjudic
tive discretion to have embraced and developed the idea of equ
For, in addition to endorsing the idea of adjudicative discre
the proponents of the equity tradition have also sought carefu
to plot the limits of its legitimate employment. In so doi
they help undermine what Hart identified as a key strateg
the opponents of discretion: the tendency to elide the distinct
between judicial discretion and the arbitrary imposition of a jud
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
C.L.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 Nussbau

rich and wide-ranging article. Instead, I focus on her explanatio
the asymmetry between mitigation and aggravation in the tradi
understanding of equity. As Nussbaum observes, in line with a class
tradition of thought about equity, there is a tendency to associate t
effect of equity with the mitigation of the requirements of strict la
the particular case (and so, by an extension that need not concer
here, with the ameliorative value of mercy), rather than with
aggravation. But this seems paradoxical. For if equity invo
attending to the particular circumstances of a case in order to reme
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 pen
is too lenient. Hence, the asymmetry in the effect of equitable discre
presents us with a paradox.3
Nussbaum seeks to resolve this paradox by invoking an empi
hypothesis about the likely causes of the failure to meet the standa
enshrined in positive law. According to this hypothesis, the inst
of wrongdoing attributable to the exceptional blameworthiness of t
perpetrators are greatly outnumbered by those that arise from
various impediments human life places in the way of compliance
the legally posited standards of justice. These impediments inc
ignorance, a defective upbringing, and the lure of competing intere
and values. On this view, we associate equity with mitigation ra
than aggravation because it is statistically far more likely, given
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 circumsta
of human life throw up many and various obstacles to meet
the tough standards of justice; if we set a high standard of g
action, the very course of life will often make it difficult for m
human beings to measure up. To put it another way, t
asymmetry arises from a certain view about the common or lik
causes of wrongdoing: the asymmetrist claims that a certa
number of wrongful acts are fully deliberate wrongs and th
certain number are produced by obstacles such as failur
knowledge, mistaken identification, bad education, or the presen
ofa competing moral claim. There may be some cases of parri
P. 87.
458 The Cambridge Law Journal [1996]
and incest that are produced by an especia

blameworthy degree of hatred or wickedness,
responsible deliberateness assumed by the law,
that this is likely to be a smaller class than the O
given the character of human life and the na
motivation.4
Nussbaum's claim that equitable judgment exhib

of mitigation and aggravation would appear to be
least in criminal cases.5 For instance, departures fro
in the name of mitigation often seem acceptable—
strike us as laudable—with respect to such matters a
deciding whether to initiate prosecutions. By contras
established rules in the opposite direction would appe
troubling. For consider what such judgments
imposition of criminal liability with respect to ac
did not attract such liability under pre-existing la
the scope of existing offences to acts or omission
within their manifest terms; and the imposition o
than those stipulated by existing law. Therefore,
accept Nussbaum's suggestion that the effect of
asymmetry along the dimensions of aggravation
However, the explanation she offers of that asym
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).
cannot adequately account for the fac

discretionary increases in penalties ev
exemplifies a level of blameworthiness e
the law. What seems to underlie our resi
general empirical assumption about the ad
rather an independent ethical considerati
where the general empirical assumption d
II. Equity and Legality
To account fully for the asymmetry we require an explanation why, in

each individual criminal case, there is an ethical consideration milita
ing against discretionary aggravation even when this would be mo
consistent with substantive justice in all the circumstances ofthe case.
This ethical consideration need only be of prima facie force, it nee
not conclusively rule out the propriety of ever employing equitab
discretion to create new crimes, extend the scope of existing crimes or
increase penalties.7 Such a consideration cannot be found whe
Nussbaum seeks it—in the generally unfavourable conditions o
human life. It is to be found, instead, in the values of legality
Augmenting the strict requirements of criminal law through a retro¬
spective exercise of discretion in order to better achieve substanti
justice violates the principle that criminal liability and sanctions should
be imposed in accordance with clear and determinate laws declared
advance to those subject to them (nulla poena sine lege)} Therefor
there is a standing ethical consideration militating against the employ¬
ment of equitable discretion to increase the severity of the stric
requirements of law that is operative in every such case, albeit one
that is defeasible in the context of an all-things-considered judgment.
On this explanation, the asymmetry between aggravation and mitiga¬
tion is preserved because an accused can raise no complaint on the
basis of requirements of legality when the law is mitigated in his o
her case.
Note two features of this alternative account of the asymmetry.
First, unlike Nussbaum's explanation, it is an explanation ofthe right
kind. It shows why the asymmetry is itself reflective of an independent
ethical consideration, and therefore why the employment of equitable
7 This point is vividly illustrated, in Scots law, by the declaratory power of the High Court of
Justiciary to hold conduct it considers sufficiently wrongful to be criminal despite the fact that it
was not, or not unequivocally, regarded as criminal under pre-existing law. Its last (explicit)
in vocation was in Greenhuff(1838) 2 Swin. 236.
8 Therefore, it is hardly surprising on this account that a major reason for the widespread
condemnation of the declaratory power is its clash with the nulla poena sine lege principle. For a
recent example of such criticism, see Ian D. Willock, "The Declaratory Power—Still Indefensible"
(1996) Juridical Review 97, at pp. 103, 105-108.
discretion is properly constrained by a value—that o

ab initio systematically favours an asymmetric outcom
with Nussbaum's essentially empirical style of expl
the asymmetry is simply a phenomenon that resu
statistical matter, from the application to a sufficient
of cases of an ethical consideration—that of equity
itself provide an independent reason for the asym
and more generally, my proposed explanation show
understanding of the asymmetry is related to the fam
conflict, or at least the tension, between equity an
adjudicative principle of legality requires adjudi
disputes by applying legal rules that have been declared
the parties involved, and not to alter the legal situatio
by discretionary departures from established law. It th
a conception of legal adjudication as the application
in accordance with their clear meaning, and militate
of equitable adjustments of the effect of such rules in
So it provides a basis for concern that the deploym
discretion, although intended to secure justice in the p
in fact productive of injustice to the party adversely a
The normative force ofthe adjudicative principle of
from the fact that it expresses a requirement of the R
bears on adjudicators. The Rule of Law require
including the legal officials of a state—be ruled by
it. But this ideal will be seriously undermined if ad
apply pre-existing law in accordance with its clear and
The sort of retrospective modification of pre-existing
is authorised by equity appears to threaten this pr
troubling because the Rule of Law secures a numbe
values,9 in particular, (i) it restricts some arbitrary us
(ii) it promotes certainty and predictability in legal adm
that people will know what laws (and, in particular
they will be subject to in various circumstances, thus e
plan their affairs, which is a key aspect of "negat
(iii) it is necessary if the law is to respect human digni
the right of individuals to plan and control their lives
their rational expectations (formed in part on the basis
rules) frustrated by retrospective law-making or ineff
or enforcement. The principle nulla poena sine lege
specific emanation of the Rule of Law, one that registe
larly grave implications of criminal liability and san
values protected by that ideal.
Here 1 follow Joseph Raz, "The Rule of Law and its Virtue", in The Auth
Law and Morality (Oxford, 1979), pp. 219-223.
That equity is in tension with the Rule o

discretionary and retrospective character
element of uncertainty and arbitrariness
familiar complaint, one famously expressed
by Selden's jibe that equity varied with
Chancellor's foot.10 More generally, we ar
seeming conflict between formal legal justic
in the injunction to "treat like cases alik
likeness is determined by features picked
legal rules) and substantive justice in the p
concern of equity. The sense of a clash be
heightened by the realisation that the gener
coupled with the inability of human agents t
future particular, is the source of the defect
rectify) is itself a requirement of the Rul
activities of legislators (disallowing Acts of
Now on the explanation that I have offe
be viewed as an attempt by the proponen
account the principle of legality in articu
determining the proper use of equitabl
asymmetry registers the fact that there is a
reason grounded in the principle of legality
discretion to aggravate pre-existing law bu
apply in anything like the same way to the u
for the purpose of mitigation. Thus, the le
the asymmetry can be invoked in suppor
that in sentencing the criteria for aggrava
not those for mitigation.11 Her two-pron
proposal seems incomplete in overlooking
legality.
Nussbaum's first justification is that aggravation criteria serve to
situate an offence within the class to which mitigation is relevant,
therefore the two kinds of criteria perform a different structural role.12
She does not, however, explain why this supports her asymmetric
prescription as to codification. In any case, this difference in role is a
specific feature ofthe Arizona statute on sentencing that she discusses.
There is no universally compelling reason why criteria of mitigation
10 It is not incongruous to relate "equity" in the broad Aristotelian sense to "equity" conceived as
those doctrines, remedies etc. that originated in the Court of Chancery. This is because, by at
least the sixteenth century, the former was invoked as providing one of the main intellectual
justifications for the latter. See e.g. J.L. Barton, "Equity in the Medieval Common Law", in
R.A. Newman (ed.), Equity in the World's Legal Systems: A Comparative Study (Brussels, 1973),
pp. 151-155.
n Pp. 118-119.
12 P. 118.
should be lexically subordinate to those of aggr

justification is that, in the case of mitigation, "it wi
. . . a code to anticipate adequately the countless way
interweave and bear upon one another in human
point about the inevitable failings of general rules w
need for equity is perfectly neutral with regard
between rules specifying criteria for aggravation an
criteria for mitigation. All that Nussbaum has es
her empirical hypothesis is true—is that such f
frequent with respect to cases of mitigation than th
because the nature of human life is such as to ge
former than of the latter.
III. Integrating Equity and Legality
Understood in the way I have suggested, the asymmetry of mitigation

and aggravation is part and parcel of the more general idea that the
correct response to the tension between legality and equity is not an
either/or choice that pursues one at the total expense of the other, but
rather the attempt to integrate both values into the operation of a
legal system.14 Indeed, the equity tradition from its classic expression
in the writings of Aristotle emphasises the need to strike a sane mid-
point between an inflexible legalism obsessed with the mechanical
application of legal rules on the one hand and the socially undesirable
and practically unrealisable aim of deliberating anew and in detail
about the merits of each case that arises on the other. Equity does not
supplant the notion of legal adjudication conceived as reasoning
guided by general rules, but rather corrects its grosser failings in
particular cases by taking into account salient features that have not
been provided for in the relevant rules.
Nussbaum herself refers to the tension between legality and equity,
and agrees with this conciliatory approach to its resolution. Contrary
to the view advanced by some feminists and Critical Legal Studies
theorists, rule-bound legal reasoning and reasoning that exhibits a
highly context-sensitive awareness of the requirements of substantive
justice in concrete situations do not constitute two mutually exclusive
"paradigms" between which it is necessary to make a radical choice:
Nor, in a deep sense, do we have to choose between equity and

the rule of law as understandings of what justice demands. The
point of the rule of law is to bring us as close as possible to what
equity would discern in a variety of cases, given the dangers
13 P. 119.
14 See J.R. Lucas, The Principles of Politics (Oxford, 1966), pp. 139-143, 212-222.
of carelessness, bias, and arbitrariness

discretionary procedure. But no such
sensitive enough, and when they have ma
itself, not a departure from justice,
standard.15
Indeed, Nussbaum stresses that proponents

able to accommodate the values of legality
in order to safeguard against possible abu
arbitrariness and bias, they may countenan
legal rules "in areas in which one cannot
ideal will be well implemented".'6 Further, t
quest for justice in the particular case
consequentialist considerations geared tow
effective legal system, such as the need to p
of legal penalties.'17
In section II I argued that the asymm
aggravation should itself be seen as yet a
equity tradition strives to accommodate
the principle of legality. The idea is that, at
deployment of equitable discretion will be
point of view of those values if its effect is
the effect of equitable discretion is a relevan
an appropriate balance between legality
argument is strengthened by the fact that v
philosophical and legal elaboration of equ
mentioned by Nussbaum—can be seen as
discretion whose rationale is a responsiveness
least, which can be invoked in fending off t
(It goes without saying that they do not con
the regulation of equitable judgment.) The
(i) The authority to dispense equity. In a le
constituted legislators, adjudicators and en
is generally only legitimately sought throug
subject unilaterally deciding to modify th
their own case. This sort of point is made
P. 96.
' P. 109. One might note, in this regard, Aristotle's claim th
drawn laws should themselves define all the points they po
to the decision of the judges", though his reasons for favou
discretion tend to be essentially pragmatic and consequentia
less time than legislators to arrive at the correct decision; that
of framing just laws than the large number necessary to adm
by-case basis; that legislators can achieve a more detached
adjudicators are more susceptible to the influence of sophist
1354a31-bll, trans. W. Rhys Roberts in J. Barnes (ed.), T
(Princeton, 1984), pp. 2152-2153.
P. 109.
makes an exception in the case of emergencies: "

danger is urgent, and admits of no delay, or time fo
authority, the very necessity carries a dispensation w
knows no law."18
(ii) Compliance with the rules purpose. Propone
tradition often claim that, in dispensing equity, the
departing from existing law or freely enacting n
fulfilling the genuine purpose of the legal rule whos
tion would produce an injustice. This is precis
advanced by Aristotle in the Nicomachean Et
adjudicator decides the case as the legislator wou
were he aware of those particular circumstances.19
(iii) The objective requirements of substantive
not let equity's concern with justice in particular con
fact that equitable judgment is determined by e
apply to all relevantly similar cases. This means t
equitable discretion is constrained by the nature
something that, in the equity tradition, is conce
regarding which it is possible to make objective
extent that they track—or honestly seek to tra
requirements of particularised justice, judgments
tion cannot be construed as arbitrary acts of wi
insists that an adjudicator must not violate the p
law when departing from the letter of the law in or
realisation of its spirit.21 Beyond this point abo
specific connection with legality will be made if,
such as Dworkin, one conceives of some such ethic
of the fabric of a community's law.
(iv) The extent of the injustice. Not any amou
injustice in a particular case is sufficient to war
modification of the effect of an established legal
generally required by both the philosophical and l
equity tradition that the injustice must be substantia
1 St. Thomas Aquinas, Summa Theologiae vol. 28 ed. T. Gilby O.P. (L

see also 97.4.
1 Aristotle, Nicomachean Ethics 1137b22. Bernard Yack has argued that passages such as this
invalidate the interpretation of Aristotelian equity as involving an appeal to higher "natural law
principles" independent of the positive law, see The Problems ofa Political Animal: Community.
Justice, and Conflict in Aristotelian Political Thought (Berkeley, 1993), pp. 193-194. See also
Hans-Georg Gadamer, Truth and Method, 2nd. rev. edn. trans. J. Weinsheimer and D.G. Marshall
(London, 1989), pp. 318-320.
1 This sort of point would be contested not only by moral sceptics, but also by those who think
that the possibility or otherwise of objective ethical judgments makes no difTerence to the
legitimacy of value judgments in legal adjudication, e.g. Jeremy Waldron, "The Irrelevance of
Moral Objectivity", in R.P. George (ed.), Natural Law Theory: Contemporary Essays (Oxford,
1992), pp. 158-187.
Aquinas, Summa Theologiae, Iallae.97.4.
that equity is regarded as a discretionary r

exceptional circumstances.
(v) The area oflaw and social life. Equitable
readily justified in areas of law and soci
associated with legality—certainty, predict
generally thought to carry great weight, a
salient circumstances between cases tends to
example, Anglo-American courts had for m
vigorously to extend the availability of equitab
concerned with the regulation of commercial a
ofthe importance of certainty in that area of
of law that exhibit greater variability in fac
the force of those values tends not to be a
negligence, to take Roscoe Pound's examp
may have a freer remit.23 Pursuing a related l
Toulmin has argued that equitable judgmen
role in the resolution of legal disputes betw
continue as close associates on an intimate
family members, colleagues, neighbours et
"who are normally complete strangers bef
have no stake in one another's future" (e.g. tho
prosecution).24 And an essential part of the
the former sort of dispute the values of legali
more to the ethics of strangers than of int
central place.25
(vi) The systematisation of equity. One of
assimilation of equity into the operation
increasing systematisation in the form of
maxims that come to acquire the force of gene
way, equity ceases to be—as on the Aristote
discretionary adjustment of the application
to the unforeseen particularities of a case,
separate body of law itself expressible in gen
systematisation, there emerges the danger o
decadence of equity". As equity becomes a sy
rules are susceptible to being applied in a s
injustice in the particular case, which is pre
was meant to remedy.26 Pound's recommen
22 See e.g. Anthony Mason, "The Place of Equity and Equitab
Common Law World" (1994) 110 L.Q.R. 238, 245.
23 Roscoe Pound, An Introduction to the Philosophy of Law (Ne
24 Stephen Toulmin, "Equity and Principles" (1982) 20 Osgoode
25 ibid, p. 12.
26 Roscoe Pound, "The Decadence of Equity" (1905) 5 Columbia Law Review 5, 25. The tendency
towards systematisation and consequent decadence is also noted by Maine with respect to both
English and Roman equity, see Ancient Law, new edn. (London, 1930), pp. 73-75.
resistance to the process of systematisation; ins

vigilance and readiness to protect equity from t
forms of colonisation by that process. Yet whence d
and abiding pressure to crystallise the grounds of eq
into general rules? Surely it must be seen as a result
bring the operations of equitable judgment into grea
the principle of legality.
That equitable judgment is constrained by t
sketched above, as well as by the asymmetry
aggravation, supports the thought that equity is not
ethical judgment that necessitates a sharp departu
autonomous form of legal reasoning. Instead, the we
considerations registered by equitable judgment, and
legitimately play in affecting the outcome of a case,
a deliberative process that reflects the distinctively
context of decision.27 To this extent, equitablenes
of Hart's "characteristic judicial virtues", the bearing
exercise of discretion "explains why some feel re
judicial activity 'legislative'".28
IV. The Limits of the Literary Model of Adjudication
The explanation of the seemingly paradoxical asymmetry in the effec

of equitable intervention that I have offered—that in terms of
responsiveness of equitable discretion to requirements of legality—
I think, fairly straightforward. Why does Nussbaum overlook it? One
possible explanation is that the ethics of legality, with its modern
emphasis on autonomy, does not figure prominently in the thought o
the ancient authors, such as Aristotle, that Nussbaum invokes a
authorities. They defended the Rule of Law primarily as a means
inculcating virtue among the citizenry, whereas the modern defe
outlined in section II is east in terms of the protection of individ
freedom from certain kinds of state interference.29 This raises the
prospect that from a modern ethical perspective the asymmetry of
mitigation and aggravation is to be understood mainly in terms of the
normative explanation I advance, whereas Nussbaum's empirical
explanation may be more compelling from within a Greco-Roman
ethical outlook. If so, the asymmetrist stance will have undergone a
radical historical transformation that goes unnoticed in Nussbaum's
27 See also Hilary Putnam, "Are Moral and Legal Values Made or Discovered?" (1995) 1 Legal
Theory 5, 7.
28 H.L.A. Hart, The Concept of Law, 2nd. edn. (Oxford, 1994), p. 205.
29 See e.g. Andrew Altman, Critical Legal Studies: A Liberal Critique (Princeton, 1990), pp. 22-24.
article and which is not adequately ref

asymmetry to elucidate contemporary pro
But there is another possible reason for N
legality into account in explaining the asy
have something to do with the "literary
particularly judicial, reasoning that she
Mercy". According to Nussbaum:
[LJegal, and especially judicial, reasonin
reasoning of the concerned reader of
of a concerned reader is an artificial construction of ideal moral
and judicial spectatorship, with respect both to particularity of
attention and to the sort and range of emotions that will and will
not be felt.30
This is a thesis Nussbaum holds in common with the newly emergent

"law and literature movement",31 one that she connects to the classical
tradition of equity primarily by reference to the role of sungnome in
Aristotle's analysis of equity and in his theory of tragedy.32 This is,
literally, the capacity of "judging with": the sympathetic understanding
of "human things" manifested in the disposition to judge actions in
the context of the motives and intentions they express as well as in the
wider personal and social context in which they are generated and take
place.33
Now one may readily grant that a comparison between literary
interpretation on the one hand and moral judgment and legal adjudica¬
tion on the other can be illuminating in understanding the latter. It is
a comparison that is helpful in articulating the uncodifiable context-
sensitivity—the need for wise and informed "judgment" which is
responsive to all the salient features of a case—that is an essential
dimension of ethical and legal reasoning. And Nussbaum does much
to render plausible the claim that the "attention to particulars" of
person and context involved in equitable judgment is exemplified by
the sensitive and engaged reading of a novel, a literary genre that
perhaps more than any other centrally demands from the reader
empathetic understanding of the actions and lives of its characters in
virtue of its "formal commitment to following complex life histories,
looking at the minute details of motive and intention and their social
formation".34
Yet the analogy between literary and legal judgment appears to be
30 P. 110.
31 Nussbaum further elaborates and defends the thesis that "thinking about narrative literature [has]
the potential to make a contribution to the law in particular, to public reasoning generally", in
Poetic Justice: The Literary Imagination and Public Life (Boston, 1995), p. xv.
32 Aristotle, Nicomachean Ethics 1143a 19-20 and Rhetoric 1374b2-10.
33 Pp. 94-96.
34 P. 105.
subject to certain drastic limitations.35 Perhap

is that it abstracts from the wider institutiona
adjudication—in particular, the fact that the d
judges have a significant impact on the interests of
them, and often also on the interests of memb
generally, and that the coercive apparatus o
brought to bear against individuals in accordance w
Relatedly, it also abstracts from the values, such as
the principle of legality, that are specifically c
regulation of adjudication within that institutional
a model of interpretation and judgment that te
occlude the unique but dramatic features of th
performed by judges, it is not altogether surpr
should neglect the crucial implications ofthe values
related to that role for determining the proper
discretion in any particular case. Of course to say a
a point made by Robert Cover about any attemp
interpretation on the model of an extra-legal form
[I]t is .precisely [the] embedding of an unders
text in institutional modes of action that di
interpretation from the interpretation of litera
philosophy, and from constitutional criticism
tion is either played out on the field of pain
something less (or more) than law.36
By bracketing, for the purposes of her analogy with

tion, the institutional fact that legal adjudication is
field of pain and death", Nussbaum is led to ov
legality that uniquely apply to legal adjudication pr
that fact. Yet it is these same values that have a key
for a central tenet of the equity tradition she wish
asymmetry of mitigation and aggravation.
There are indications that Nussbaum would be
concerns about the potential limitations of the
adjudication. In Poetic Justice she acknowledges t
to be combined with "institutional constraints"—such as "technical
legal reasoning, knowledge of law, and the constraints of precedent"
35 See, e.g. Richard Posner, The Problems of Jurisprudence (Cambridge, Mass., 1990), pp. 393-413.
Note Posner's assessment that "Literature can . .. illuminate the perennial issues of jurisprudence
that arise from the tension between law and equity (and more broadly, between formal and
substantive justice)" ibid. p. 395, which he combines with trenchant criticisms of Robin West's
contributions to the law and literature movement. According to Posner, in "urging judges to
discard the conventional principles of legality", West "confuses the judicial and literary roles",
ibid, p. 413. My claim is not that Nussbaum rejects such principles, but overlooks how they mesh
with equity to produce the asymmetry she rightly notices.
36 Robert Cover, "Violence and the Word", in M. Minow, M. Ryan and A. Sarat (eds.), Narrative,
Violence, and the Law: The Essays of Robert Cover (Ann Arbor, 1992), p. 210.
as well as, presumably, some version of t

legality—in order to yield "a complex ide
is a powerful rival to other conceptions o
even goes so far as to concede that adhere
not only insufficient for good judging, it c
if not properly tethered to other purely ins
The question I must leave unconsidered h
justified in supposing that once "instituti
factored in the resultant model of adjudi
literary in character.
37 Nussbaum, Poetic Justice, p. 82.

38 fbid,p. 118.

The Paradox of Equity

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The Paradox of Equity

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Editorial Committee of the Cambridge Law Journal

The Paradox of Equity

THE PARADOX OF EQUITY

Martha Nussbaum's recent article "Equity and Mercy" eloque

I. The Asymmetry of Mitigation and Aggravation

In this paper I do not try to do justice to all the strands in Nussbau

and incest that are produced by an especia

Nussbaum's claim that equitable judgment exhib

cannot adequately account for the fac

II. Equity and Legality

To account fully for the asymmetry we require an explanation why, in

discretion is properly constrained by a value—that o

That equity is in tension with the Rule o

should be lexically subordinate to those of aggr

III. Integrating Equity and Legality

Understood in the way I have suggested, the asymmetry of mitigation

Nor, in a deep sense, do we have to choose between equity and

of carelessness, bias, and arbitrariness

Indeed, Nussbaum stresses that proponents

makes an exception in the case of emergencies: "

1 St. Thomas Aquinas, Summa Theologiae vol. 28 ed. T. Gilby O.P. (L

that equity is regarded as a discretionary r

resistance to the process of systematisation; ins

IV. The Limits of the Literary Model of Adjudication

The explanation of the seemingly paradoxical asymmetry in the effec

article and which is not adequately ref

This is a thesis Nussbaum holds in common with the newly emergent

subject to certain drastic limitations.35 Perhap

By bracketing, for the purposes of her analogy with

as well as, presumably, some version of t

37 Nussbaum, Poetic Justice, p. 82.

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