Last edited 21 October 2021
gr. ἐπιείκεια, lat. aequitas, fr. équité, it. equità, span. equidad, ger. Billigkeit, nl. billijkheid, chin. 公平 gōngpíng
Equity is a concept within the wider semantic field of justice. Its most common meaning refers to a complement or corrective of the law where this has systemic or practical deficiencies, as John Tasioulas puts it: “Laws are intended to achieve justice, but the application of an otherwise just law may yield an injustice in the circumstances of a particular case” (Tasioulas 1998, n.p.). However, the usage of equity has always been extremely varied and multifaceted, with legal, social, philosophical, political, economic, financial or educational specializations, to name only the most obvious ones today. Its (rarely used) opposite is “inequity”, which is differentiated from the morally or religiously connoted, cognate derivative “iniquity”. It has overlaps, but is not synonymous, with equality, mercy and clemency, as well as with fairness, pity, pardon, forgiveness or amnesty. The etymology of the English word “equity” stems, by way of its French likeness, from Latin aequitas and the adjective aequus, which has a broad spectrum of meaning: “level, even, equal, like, just, kind, favourable, impartial, fair, patient, contented” (Pocket Oxford Latin Dictionary, 3rd ed.).
With its chequered and long-standing history, the use of the term “equity” today is multifaceted, sometimes ambiguous and certainly divers. The ongoing volatility of the term can be gauged by its entry in the Oxford English Dictionary, where the lemma shows three draft additions since 1993, still under review (“Equity”, OED). This is not only an indication that the concept of equity calls for further research and exploration, but that it marks a highly dynamic semantic field that is far from consolidated or conclusively defined. The following illustration of three highly divergent meanings can show this. Thus, equity can very specifically designate “the amount of money that would be returned to a company’s shareholders if all of the assets were liquidated and all of the company’s debt was paid off in the case of liquidation” (“Equity”, Investopedia, n.p.). Clearly, the image of the equal balance reached by juxtaposing a company’s financial liabilities against its assets on a balance sheet seems evoked here, so that this meaning appears straightforward, narrow and technical.
Second, equity designates that area of English law which was formerly administered by the Court of Chancery and today is looked after by the Chancery Division of the High Court of England and Wales, with a focus on disputes about trusts and property. Here, equity law has been in dialogue, and sometimes in conflict, with other areas of English law, primarily with common law and statutory law, but also with ecclesiastical law and sometimes, unofficially, with sharia law in modern diasporic settings in England. Outside of England and Wales, similar constellations obtain in legal systems, especially where these are built on or inspired by English law. Thus the UK has two further, distinct jurisdictions in Northern Irish Law, which is very similar to English law, including equity law, and Scots Law, which, though based on civil law, is a mixed legal system with elements of common law, where equity has been accepted as a legal principle but never in institutional separation. Further legal systems worldwide with a tradition of equity jurisdiction next to the common and statutory law include the Republic of Ireland, the US (with differences in Louisiana), Canada (except for Quebec), India, Australia, New Zealand, Singapore, Hong Kong and, with some complications, South Africa. Here, clearly, is the most prominent use of “equity” which has produced a long history of legal argument especially on the relation between equity and other types of law, including the question whether equity is at all part of the law or stands outside of it as a complement or corrective, with the related questions about the authority, the institution or the social and political practice where such a corrective could or should be located. This does not mean that the notion of equity is absent in codified, civil law systems, as already prefigured in the praetorian law (ius praetorium) in Roman legal practice from the middle of the 2nd century BC onwards. Similarly, it is repeatedly discussed in the evolution of the French code civil (Debruche 2009) and present in German legal understanding as the legal principles of Billigkeit and Verhältnismäßigkeit (proportionality).
In the further opening of the strictly legal term towards wider questions about the location of agency, authority and responsibility to achieve the aims of just, fair and inclusive societies, equity has, thirdly, become a well-nigh ubiquitous buzz word in movements of social and political enfranchisement and the struggle for equal opportunities, especially in education, gender equity, racial equity, disability equity and similar concepts which appear as topical and contentious slogans in activist, political, economic, social and cultural fora. Here, the former watchword, “equality”, familiar from the revolutionary movements of the late 18th century, is either replaced by “equity”, or at least the latter marks the preferred way to achieving social equality, as it seems the more appropriate term to express the ethical, moral or political trajectories envisioned to reach the social ideal. This wider understanding of equity thus brings the concept’s usage back in touch with its early Greek and Roman root meanings as illustrated in section 2 below.
On the side of literature, equity has never been used as a technical term in literary studies; and it has rarely been a subject directly spelt out in literary works. It is obvious, however, that much of the literature written with a social agenda in mind, implicit or otherwise, would quickly come within the circumference of the wider conception of equity as suggested above in the third example of the usage of the term. Much feminist, queer, postcolonial, working-class or eco- literature as well as many children’s books with a pertinent educational message could, no doubt, be marshalled under an equity agenda in this general sense. In fact, it is helpful to keep in mind Marc Fortier’s aim “to displace the sense that equity is first and foremost a legal notion” as he outlines no less than six cultural fields where equity was a major consideration in early modern England, and law is only one of them (Fortier 2005, 22–23 and passim; see also the subchapter “Multiple Meanings of Equity” in Watt 2009, 36–41). Fortier’s introductory definition succinctly documents the reach of the concept:
Equity is a moral principle (equal justice, fairness), an interpretative method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice). For the writers I study, equity is a habit of thought that may be cultivated through fictional methods. (Fortier 2005, 1)
Nevertheless, it is equity’s narrower, legal application in the second usage exemplified above where it is discussed as a legal principle and practice in English law and other common law systems that literature’s imbrication in equity’s discursive field has been most prominent, or at least most widely studied.
This longstanding literary involvement with legal equity, which frequently merges with the wider social implications of the third usage of equity in the examples above, has only in recent decades become the focus of an expanding body of scholarship. Following the historical trajectory of this evocative pairing of equity and literature leads back to early reflections on literature and law in the Greek beginnings of Western civilization. It was further developed by Roman philosophers and rhetoricians and gained new meaning with the rise of Christianity. In medieval England, equity jurisdiction evolved alongside the common law and found its institutionalization in the Chancellor’s office. There, it became ever more important, but also more controversial. In early modern England, equity provided a prime site for negotiating concepts of justice and how best to administer it in the state. The quickly growing national, vernacular literature took an active part in this negotiating process. How this mutually productive constellation emerged in antiquity and evolved as a separate legal institution in England, how literary authors took up the discussion about equity and found their own, distinctive voice in various literary periods, and soon in various other geographic and cultural contexts inspired by English law, but also in others characterized by civil law traditions will be the trajectory of the following survey.
2. Foundations in the Western Tradition
Discussions of equity throughout Western history regularly hark back to Greek and Roman sources as their foundational precedents. Such tradition-making fosters a perspective on equity as a principle deeply ingrained in Western culture and especially in those legal systems with a common law basis. Nevertheless, it should be noted that concepts of equity can be found in other legal traditions, as well. As comparative legal scholarship has begun to explore other legal systems, such as Muslim law, Jewish law or Customary legal dispensations, these will often contain equitable elements or practices (see e.g. Rosen 2000, esp. Ch.1: “Equity and Discretion in Islamic Law”; Kornfeld 2020). In how far such equitable legal and ethical constructs outside of Western traditions have their own literary counterparts and overlaps, whether they are mutually dependent on these or have some interesting cross-currents and influences with developments in the Western tradition, is still a question that has not been widely studied and offers itself to further research in the future.
2.1. Greek Antiquity: Gorgias, Plato, Aristotle
The most common Greek equivalent for “equity”, ἐπιείκεια, with the adjective ἐπιεικής, appears as early as Homer’s epics. Thus, when Hector chides Alexander in Book VI of the Iliad for his anger which keeps him away from the battle, Alexander answers: “Hector, since thou hast rebuked me according to equity [κατ’ αίσαν επείκεσας], and not beyond equity / On this account I will speak to thee.” (Iliad VI. 232–234). Gorgias of Leontinoi (c.485–c.396 BC) provides, as Kathy Eden notes, “one of the first extant treatments of the topic [of equity]” (Eden 1986, 2), showing it as a mitigating agency vis-à-vis rigorous justice, a mitigation effected through an appeal to the emotions by deceptively fictitious rhetoric. Eden concludes:
Although in his preserved writings Gorgias never formulates the analogy between poetry and equity, his brief and discrete treatments of them imply at least the similarities. (Eden 1986, 28)
Gorgias contrasts the precision (ἀκρίβεια, akribeia) of the law with the greater flexibility or gentleness and leniency of equity, as Martha Nussbaum further elaborates (Nussbaum 1993, 86). In this he is followed by Plato, who introduces Gorgias as a rhetorician in one of his earlier dialogues (now eponymously entitled Gorgias), but with very different consequences.
As Plato makes clear in Laws, the aim of legislation must be “not the advantage of a few tyrants, or of one, or of some form of democracy, but justice always [τὸ δίκαιον ἀεί]; and this consists in what we have just stated, namely, the natural equality [τὸ κατὰ φύσιν ἴσον] given on each occasion to things unequal” (Laws 757d, Bury I, 414 –415). To avoid faction, however, he concedes that, in Benjamin Jowett’s translation, “equity and indulgence” (τὸ γὰρ ἐπιεικὲς καὶ ξύγγνωμον) need to be employed, but they remain “infractions of the perfect and strict rule of justice [παρὰ δίκην τὴν ὀρθήν ἐστι παρατεθραυμένον]” (Laws 757e, Jowett n.p.). Plato leaves no doubt where his preference lies, as for him the use of equity and indulgence are on the same level as the use of the “equality of the lot” (Laws 757e, Bury I, 415), leaving it to god and good luck eventually to achieve justice in this way, too.
Plato does not consider the law as infallible, and the reason he gives for that in The Statesman is a fundamental one:
[…] law could never, by determining exactly what is noblest and most just for one and all, enjoin upon them that which is best; for the differences of men and of actions and the fact that nothing, I may say, in human life is ever at rest, forbid any science whatsoever to promulgate any simple rule for everything and for all time. […] And so we must believe that the law-maker who is to watch over the herds and maintain justice and the obligation of contracts, will never be able by making laws for all collectively, to provide exactly that which is proper for each individual. (The Statesman 294a–b; 294e–295a, Fowler 135, 137)
Plato does not, however, see the remedy for the noted defect of the law, namely that it is a general rule and hence will not satisfy the needs of each individual case, in equity, as Aristotle and a long legal tradition after him would. Plato’s remedy is that not the laws should ultimately hold the power but the wise ruler (τὸ δ᾽ ἄριστον οὐ τοὺς νόμους ἐστὶν ἰσχύειν ἀλλ᾽ ἄνδρα τὸν μετὰ φρονήσεως βασιλικόν; The Statesman 294a). The law, for Plato, is only second best compared to the dispensation of justice through the wise ruler, and equity is even further relegated behind the strict law. While Plato thus disparages the concept of equity as found in Gorgias, he eventually assigns, without calling it so, an equitable function to the ruler who will decree laws because of the impossibility to decide for each individual case, but retain the power to adjust his decisions whenever he finds circumstances altered and adjustments necessary (296a).
Plato’s scepticism towards poets in The State is well-known. It has to be noted, however, especially with a view to Aristotle’s turn of the tables on this, that Plato’s relegation of the poets to an inferior role vis-à-vis the lawgiver and judge is, in fact, based on a perceived isomorphism between law and poetry, as Kathy Eden succinctly remarks:
Plato […] not only recognizes the analogous roles of the legal and theatrical judge, but he aligns more generally the two activities of forensic persuasion and tragic mimesis – an alliance which almost throughout his dialogues ends in joint condemnation. (Eden 1986, 8)
Eden here refers to the following passage in Laws, where the tragedians and the lawgiver are directly juxtaposed:
[W]e ourselves, to the best of our ability, are the authors of a tragedy at once superlatively fair and good; at least, all our polity is framed as a representation of the fairest and best life, which is in reality, as we assert, the truest tragedy. Thus we are composers of the same things as yourselves, rivals of yours as artists and actors of the fairest drama, which, as our hope is, true law, and it alone, is by nature competent to complete. (Laws 817b, Bury II, 99)
Although this is not made explicit, there is no doubt that it is the true law (νόμος ἀληθὴς, Laws 817c, Bury II, 99) that is to rule supreme in Plato’s state, whereas poets and equity are referred to secondary, subsidiary ranks: they are acknowledged in their similarities to the true law and its administrations, but in the face of their clear inferiority there is really no place for them in an ideal social setup, even if the wise ruler from the Statesman remains with a quasi-equitable function in the background.
As so often, it is Aristotle who offers the most influential treatment of the subject in his time, primarily in Nicomachean Ethics, Politics and Rhetoric. For Aristotle, equity “makes up for the defects of a community’s written code of law” as he goes on to explain in Book 1.13 of Rhetoric:
For equity is regarded as just; it is, in fact, the sort of justice that goes beyond the written law. Its existence partly is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, where they find themselves unable to define things exactly, and are obliged to legislate universally where matters hold only for the most part[.] (Aristotle, Rhetoric 1374a 26–33)
Equity as the solution to the conundrum of the impossibility to fit universal laws to individual cases is further developed in Nicomachean Ethics, notably in the following, much-quoted passage from Book V:
When the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver's pronouncement because of its absoluteness is defective and erroneous, to rectify the defect by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognizant of the case in question. Hence, while the equitable is just, and is superior to one sort of justice, it is not superior to absolute justice, but only to the error due to its absolute statement. This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality. In fact this is the reason why things are not all determined by law: it is because there are some cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary. For what is itself indefinite can only be measured by an indefinite standard, like the leaden rule used by Lesbian builders; just as that rule is not rigid but can be bent to the shape of the stone, so a special ordinance is made to fit the circumstances of the case. (Aristotle, Nicomachean Ethics V, 1137b 20–30).
Equity’s analogy with the leaden rule of the Lesbian builders evokes, in Kathy Eden’s perceptive analysis, its correlation with the very fundamentals of of rhetoric:
Equity’s accommodative power – that is, its responsiveness to particular circumstances – renders it a formidable tool of rhetorical argument, insofar as rhetoric itself is first and foremost the art of accommodation. (Eden 1997, 14).
Aristotle’s proposal to conjure up, in cases unforeseen by the existing law, the legislator’s presence and assume his legislation “if he had known” is both a call to produce an imaginative fiction and a focus on the legislator’s intention rather than the letter of the law, hence also a call to interpretation. This is further expanded following the above-quoted passage from Rhetoric:
Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his choice, nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or for the most part been. It bids us remember benefits rather than injuries, and benefits received rather than benefits conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force[.] (Aristotle, Rhetoric 1374b 10–20)
This passage clearly shows how Aristotle develops equity not only as a general, legal and ethical principle, but also as a personal characteristic of an equitable personality. This is why Visconsi, referring to similar points made in Nicomachean Ethics, identifies “two interwoven aspects of equity – the public norm of remedial legal interpretation along with the private cultivation of an equitable soul”, and he sees this combination as “emblematic of the traditional view in classical antiquity that the cultivation of political justice and personal virtue are wholly inspearable” (Visconsi 2008, 7). As Kathy Eden summarizes, Aristotle’s interest in intention includes both the legislator and the perpetrator of misdeeds whose intentionality has to be taken into account in the judgement (Rhetoric, 1.13, 1374b 6–9), and this happens in juxtaposition to the law:
When the law examines the words of the statute […], equity regards the legislator’s intention. Similarly, when the law examines only the act committed […], equity regards the intention of the agent […]. (Eden 1986, 41 –42)
It is here that Eden, referring to Poetics (9, 1451b 5-11), also identifies the connection between equity and poetry, as opposed to history which is concerned with particularities only and to philosophy which deals with universals:
[F]iction reveals not only what happened, but why the events occurred as they did. To reveal the cases of human action, moreover, poetry, like equity, looks to the ēthos and dianoia of the agents. (Eden 1986, 49)
Dealing with the choice and treatment of stories in tragedy, Aristotle advises in Poetics:
The traditional stories […] must be kept as they are […]. At the same time, there is something left to the poet himself; it is for him to devise the right way of treating them. […] These exhaust the possibilities, since the deed must be done or not done, and either knowingly or unknowingly. (1453b 22–37)
Referring to this passage, Kathy Eden draws out the parallel to Aristotle’s legal concepts and to equity in particular:
The kind of action best suited to the tragic stage […] corresponds to the category of actions which in the law court deserve equity rather than strict justice. In these special cases, the judge or jury must look beyond the law itself to the legislator’s intention and beyond the action itself to the agent’s intention. This method of analyzing and qualifying human action describes equally the legal fiction and the poetic fiction. Fictional method, in other words, includes both the equitable and the tragic reconstruction of past events in the light of the agents’ inherently irrecoverable intentions. (Eden 1986, 53)
With this, Aristotle has shaped the goundworks for future discussions of equity. He has also established the lasting and intimate interrelationship between law and literature in a fundamental way. As Elliott Visconsi concludes:
In Aristotle’s deeply influential account, poesis, like equitable judgment, looks not to the part but the whole, not to specific historical facts but to the universal norms that give them meaning; like equity, Aristotelian poesis solicits a sympathetic bond between a character and the judging audience; like equity, Aristotelian poesis is an invitation to hermeneutic deliberation in the service of ethical development. (Visconsi 2008, 23)
This is the basis on which further considerations of equity and literature will be built. Several issues, raised and explored in Greek antiquity will remain on the agenda throughout the Western cultural history of equity, as suggested in Mark Fortier’s pithy list:
the inadequacy of positive law in some circumstances; the fear of roguish or ill-considered discretion; the tensions between equity and law, at least positive law; the intentional reading of statues; the lesbian rule; equity as a personal or philosophical virtue; the relations between equity and leniency; equity’s relation to natural law; equity as exception; equity as unchanging; equity as moral opposition to bad law; equity as rectification of the law (Fortier 2015, 19).
2.2. Roman Equity: Praetorian Law, Cicero and Quintilian
The many continuities of Greek thought in Roman law and literature include the negotiations between equity and literature. In fact, Roman justice developed an instrument in the praetorian law which incorporates much of the general concept of equity, so that this is a natural point of departure for further exploration.
2.2.1. Praetorian Law
The Roman praetor acquired a legislative power through the ius praetorium from the 2nd century BC onwards through which he could adjust the existing Roman civil law to the exigencies of a quickly changing society. Praetorian law was mainly promulgated through the annual Praetorian Edict and addressed issues in private law, notably property law, contract law and inheritance laws. These are also the main areas in which equity laws in common law systems are applied, and because of the similarity in its corrective function directed towards an existing legislative and jurisdictional practice, praetorian law has often been understood as an equity component in Roman law (Visconsi 2008, 7). During the 5thcentury, praetorian law was gradually merged with and eventually was completely integrated in the civil law.
The potential antagonism between the two legal institutions of the civil law and the praetorian law apparently did not, however, excite much interest as a theme with literary authors of the time. As Alan Watson argues, the place to look for potential literary refractions of praetorian law is Plautus, but the result of the search in this dramatic corpus is meagre:
The playwright Plautus was interested in law and his plays are studded with legal jokes and legal scenes. But virtually nothing is said about the Praetor’s Edict. […] The paucity of information in Plautus on the praetor’s Edict is all the more striking when one recalls the large number of legal jokes, legal scenes and comic use of legal terminology which occurs in his plays. (Watson 1970, 107, 114)
The kind of equity as dispensed through praetorian law has not left much of an echo in Roman literary texts, although it has to be noted that both praetorian law and its appearances in Roman literature stand in need of further research, so that the conclusion here must remain preliminary.
Although the most direct equivalent to equity jurisdiction in the ius praetorium appears not to have become productive in literature, the close relation between concepts of equity and literature as a characteristic of the Greek heritage is taken up and developed in the Roman rhetorical tradition, notably by Cicero and Quintilian. When Cicero discusses, in Book I of De Oratore, the “art” (ars) of law, he identifies what binds it together and constitutes it as an “art”, the aequabilitatis conservatio, which John Selby Watson, in 1860, translated as “preservation of […] equity” (Cicero, On Oratory and Orators, Watson, 55), while Sutton and Rackham in the Loeb Classical Library translated it, possibly closer to the use of the Latin word, as “preservation of […] impartiality” (Cicero, De Oratore, I.189, Sutton, 131). Whichever English equivalent is the better fit here can remain open to dispute, but it is just as well to note from the start that Watson’s translation with “equity” can reflect on the topicality of the term in his own time as much as it points to the centrality of the concerns of equity identifiable throughout Cicero’s thinking. Thus, in Pro Caecina, he commends Gaius Aquilius as a “distinguished man” [vir ornatissimus] on the grounds that his “conception of law has never been divorced from equity” [qui iuris civilis rationem numquam ab aequitate seiunxerit] (Cicero, Pro Caecina 77–78; Hodge, 174). In fact, for Cicero, absence of equity would, in the resulting surplus of law, lead per se to injustice, for which he quotes the maxim, which he denotes as an already well-worn phrase in his time: summum ius, summa iuiuria (Cicero, De Officiis I.x.33, Miller, 34). This, together with the maxim that the welfare of the people was to be the highest law and hence the aim of equity (salus populi suprema lex; Cicero, De Legibus III.iii.8, Keyes, 466) already contained much in a nutshell of what Cicero had to say about equity.
Cicero clearly picks up from Aristotle the notion that equity forms a contrast to the letter of the law. Later in Book I of De Oratore, Cicero presents in his dialogue between Marcus Antonius and Publius Crassus the juxtaposition of legal knowledge of written law as against rhetorical brilliance in the decision of law cases. Antonius reports a discussion between Crassus and Servius Galba in which Galba wins out against Crassus’ legal scholarship and positivism by “many considerations in favour of equity and against strict law” (pro aequitate contra ius; I.lvi.240; Sutton, 175; Watson 1860, 73: “for equity against the strict letter of the law”). Antonius develops this dispute in the wider consideration that only those cases are brought to court where the letter of the law is in doubt whereas the majority of legal issues are of no further interest to the lawyer because they leave no room for ambivalence (ut de earum iure dubium esse non possit, I.lvii.241) and hence never will appear in court in the first place. In cases, however, which are contentious even among the best legal scholars (quod ambigitur inter peritissimos, I.lvii.241), the reasoning runs, it is not the lawyer with the best legal knowledge that will win the case, as authorities can be found for arguments on both sides; it is the lawyer who is the best orator and can argue his case most persuasively that will win the day. And Galba wins the argument against the learned Crassus by making him see that even in his own legal victories it was not his legal experience that won his case but his superior rhetoric.
Even Antonius later concedes, however, that knowledge of the law is of use to the orator, but it is just one field of many (De Oratore I.lix.250) and should not detract him from focusing on his rhetorical art as his prime qualification. If the position of Antonius, who argues for the importance of rhetoric and persuasion, against that of Crassus who here represents the knowledge of the written law (ius) and its learning appear as opposites, the dialogic structure of Cicero’s book eventually brings the two sides together. This comes out clearly in Crassus’ critique of Socrates later in Book III, whom he reproaches with having separated knowledge and rhetoric, or content and form:
Socrates […] separated the science of wise thinking from that of elegant speaking [sapienterque sentiendi et ornate dicendi scientiam], though in reality they are closely linked together […]. This is the source from which has sprung the undoubtedly absurd and unprofitable and reprehensible severance between the tongue and the brain [quasi linguae atque cordis] [.] (De Oratore, III.xvi.60–61, Hodge, 48–49)
If any priority between the two reunited faculties of thinking and speaking is to be discovered in Cicero, it will, of course, rest on the latter. He had suggested in De inventione: “it is generally agreed that the end in the forensic type [of speech] is equity” [in iudiciali genere finem esse aequitatem; De inventione II.li.156; Hubbell, 322–323]; and if the analogy is drawn to the dispute between Galba and Crassus above, equity is clearly sided with the rhetorical skill, while the written, strict law is on the side of thinking or knowledge. Equity actually is enacted in the pleading lawyer’s rhetorical skill that does not only rest on legal expertise, but takes in a wide panoramic view of the knowledge of many “arts” and shapes them into expert speech tuned to move the judges.
With his emphasis on the orator’s art, Cicero has developed his own take of equity on the basis of Aristotle’s premises, as Visconsi explains:
As in Aristotle, equity is an interpretative process that can have the effect of achieving justice, but Cicero is more interested in how an argument for equitable relief from the letter of the law ought to be constructed than he is in making axiomatic claims of moral philosophy. (Visconsi 2008, 7)
How much Cicero attaches equity to the legal orator’s art of interpreting intentions and circumstances can be seen in his detailed description of a speaker attacking the letter of the law, which comes after his description of a speaker in favour of the letter of the law [qui pro scripto dicet] (De inventione II.lxvi.136; Hubbell, 304–305):
On the other hand the speaker who is attacking the letter [of the law] will first of all present the argument to prove the equity of making an excuse [per quem aequitas causae demonstretur]; or he will show with what intention or design he did what he did, and for what reason […]. he will then use the following arguments against his opponents to prove that excuses ought to be accepted. He will point out […] that the author of the law himself, if he should rise from the dead, would approve this act, and would have done the same if he had been in a similar situation; that the reason why the author of the law provided for judges from a certain class and of a certain age was that there might be a judicial body able not only to read his law, which any child could do, but to comprehend it with the mind and interpret his intentions; again, that if the law-maker had been giving his law to ignorant men and barbarous judges, he would have written everything out in precise detail; but as he knew the quality of the men who were to judge the cases, he did not add what he saw was perfectly plain. For he did not think of you as clerks to read his law aloud in court, but as interpreters of his wishes [voluntatis interpretes]. […] Then it may be urged that nothing at all could be done either with laws or with any instrument in writing, or even about our everyday conversation and the orders issued in our own homes, if everyone wished to consider only the literal meaning of the words and not to follow the intentions of the speaker. […] Next he may set forth the true nature of law, that it may be shown to consist of meanings, not of words, and that the judge who follows the meaning may seem to comply with law more than one who follows the letter.
(De inventione II.xlvii.138, II.xlviii.141; Hubell, 306–309)
Thus, Cicero’s main contribution to the linkage between equity and literature is through his conception of rhetoric and, more specifically, through his exploration of the need for interpretation within this art of the orator. Kathy Eden summarizes:
Cicero’s understanding of interpretation in terms of controversy – indeed, his inclusion of interpretation-theory in rhetorical theory – is decisive for the history of hermeneutics[.] (Eden 1997, 8)
Cicero’s rhetorical argument for equity was further developed and adjusted by Quintilian, Rome’s other great rhetorician more than a century later.
Quintilian takes up much of what Cicero had established in the connection between equity and rhetoric in his monumental De Institutione Oratoria. He repeats the differentiation made in Cicero’s De Oratore between the things that are clearly set out in civil law and those that are doubtful and hence call for the orator’s art, which is where equity comes in:
Every certain point of law depends either on a written text or on custom; doubtful points need to be examined by the standard of Equity. What is written or based on the custom of the state presents no problem. These things call for knowledge, not Invention. (De Institutione 12.3.7; Russell, 240–241)
This passage links equity with invention, which is not, of course, mere contrivance or fabrication for Quintilian, but the first step in the five parts of oratory, consisting of “Invention, Disposition, Elocution, Memory, and Delivery or Performance (both terms are in use)” [inventione dispositione elocutione memoria pronuntiatione sive actione (utroque enim modo dicitur)] (De Institutione 3.3.1; Russell, 22-23). Hence, equity is a standard, not to say the gold standard, by which the legal orator is to find and select the topics to make up his speeches dealing with “doubtful points” not covered by written laws or custom, hence those cases that are relevant in legal actions and call for the orator’s art. Quintilian goes beyond Cicero, however, when he not only grounds the decision whether a case is clearly covered by written law or whether the orator’s art is called upon in the matter of the case itself. He opens it up to a strategic decision on the orator’s side, when he advises: “if we have no confidence in our case in law, we can soften the judge up by a point of Equity” (De Institutione 7.2.64; Russell, 184–185).
When Kathy Eden then argues for a close similarity between forensic and dramatic activities in Quintilian, it quickly becomes obvious that equity is, again, a link that will act as a principle and guiding light in both spheres, as here in her observations on “the fundamental similarities between the dramatic and the forensic image”:
The actor on stage and the orator in court, according to Quintilian, face the same task – one which involves engaging the emotions of the audience, and in this way moves them to acquiescence in certain judgements and then perhaps to adopt a course of action. (Eden 1986, 92)
Thus, a major tradition running from Aristotle through the rhetorical tradition with Cicero and Quintilian as its galleon figures has already established a well-defined concept of equity in the legal sphere: Equity is portrayed as a complement to the strict letter of the written law; it does not only appear in the earliest European literature as for instance in Homer’s epics, but connects literature and the law by a number of isomorphisms and similarities, which include similar challenges of interpretation, of argumentation and of their respective discursive aims. Equity’s conceptual reach gestures beyond the literary and forensic texts towards a shared ethos in that there is an expectation for the authors of these texts, the orator and the poet, to display an equitable character and attitude as the precondition for equitable speech. This is the common basis on which equity would shape literature and the law in the centuries to come.
Domitius Ulpianus († 228) is a further important writer on the development and discussion of equity in late antiquity. Tony Honoré nicely sums up Ulpian’s far-ranging exploration of equity:
Equity is related in his [Ulpian’s] thinking to equality, not directly, but in the sense that it requires the interests of each person to be taken into account and given equal weight. Equity requires that the parties should be on a level, so that for example the right to sue goes with liability to be sued, and benefit and liability go hand in hand. Those who are weak or have been deceived must be protected against the strong and the deceivers. In this connection Ulpian often denounces craftiness (calliditas) and stresses provisions in the edict directed against the crafty, or those who exploit others, or which serve to protect the ill-informed. The special feature of natural equity is that it operates even when the civil law does not cater for the problem. For example, it takes account of agreements that are not enforceable by civil law, protects persons who have technically come of age but are immature, and prevents slaves due to be freed from taking advantage of legal technicalities. Natural equity is not fundamentally different from civil equity, but the equitable solution to a problem may or may not already have been embodied in the civil law. (Honoré 2002, 93; for references to Ulpian’s writings see there)
Many of Ulpian’s legal opinions made it into Iustinian’s digests and thus received wide currency, most notably through his maxim, of which the suum cuique is still widely quoted today: “Iustitia est constans et perpetua voluntas ius suum cuique tribuendi.” (Iustinian, D. 1.1.10; “Justice is the constant and unremitting will to give to each his own law.” – For this English translation and on its reception in Chaucer, see Grennen 1985, 511). This idea of giving each their due (ius) “was generally interpreted as a circumlocution for equity, also in the Middle Ages”, as Conrad van Dijk points out (van Dijk 2009, 319), and hence remained a lasting contribution to the development of equity.
2.3. Early Christianity
The Tanakh, the Jewish Bible, consists of three main sections, of which the first part is the Torah, translated as “Law”, next to the Prophets (Nevi’im) and the Writings (Ketuvim). Although legal or quasi-legal sections abound, these are not primarily understood in modern scholarship as a body of codified law. In line with cognate legal collections of the ancient Near East and Mesopotamia they are seen as giving a framework within which judges could negotiate their decisions, which is why Bernard Jackson describes them as “wisdom-laws” (Jackson 2006). John Barton, referring back to Jackson, writes:
[I]n the very place where we are most inclined to see rulings, the Old Testament laws, we have in fact something closer to the open-ended observations of the wisdom writers. […] So law and wisdom turn out to be closer together than at first appears, and both are to some degree dialogical in form, inviting the reader to enter into a moral discussion rather than closing off the debate from the start. Certainly there are some absolute commandments, but for the most part the literature is pragmatic and based on a consideration of individual cases. (Barton 2019, 84)
Obviously, the legal approach characterized here resonates with the concept of equity of Greek inheritance, in its openness, flexibility and adaptability to specific circumstances and individual cases. In fact, the Jewish Bible has its own term with a rough equivalence to equity, typically used in the plural, mesharim (mêšārîm; מֵישָׁרִ֑ים), as in Psalm 99:4: “The King’s strength also loves justice (מִשְׁפָּ֪ט; mišpāṭ); / You have established equity (מֵישָׁרִ֑ים; mêšārîm);” in the translation of the New King James Version. The root word is yashar (יָשַׁר), “to be smooth, straight, right” and meshar (מֵישָׁרִ) meaning “evenness, uprightness, equity” (https://bibleapps.com/hebrew/4339.htm) with the plural mesharim. As to the word’s translation, it is not consistently rendered with “equity” in English Bibles, as in Psalm 58:1 where the King James Version translates “uprightly”. Neither is there a word-for-word consistency with other translations, as in Psalm 99:4 quoted above, where the Septuagint has εὐθύτης for the Hebrew mêšārîm and the English “equity”, while the Latin of the Vulgata joins in with aequitates iudicium (see also Fortier 2005, 30–32). It is clear that the Hebrew tradition has both a cognate concept and terminology for equity in the legal sense, even if this is not a central theological issue and has not travelled straight through the various translations. Travel it did, however, into English, and the reference to equity in English Bibles remains highly relevant from early modern times onwards.
When early Christianity began to swerve away from Judaism, the understanding of (divine) law was an important point of contention. Early Christian writers, from Paul and the Gospels onwards, distinguished themselves from the adherence to the (dead) letter of the law and the stickling for legal detail as they characterized the Jewish approach, epitomized in the overanxiousness of the Pharisees and scribes, and castigated by the Jesus of the Gospels. Thus, Paul describes to the Corinthians that God “hath made us able ministers of the new testament; not of the letter, but of the spirit: for the letter killeth, but the spirit giveth life” (2 Cor 3:6 King James Version), expressing this innovative and equitable legal approach in strong contrast to the “old testament”. Referring to Paul’s extension of this freedom from the letter of the law through the spirit as described in 2 Cor 3:23–28, Elliott Visconsi concludes:
Within Paul's vision is an echo of Ciceronian equity, where we too saw the horizontal bonds of citizenship predicated upon “equality and rights before the law“. (Visconsi 2008, 10)
In a similar vein, the Gospels show Jesus time and again in confrontation with the scribes and pharisees, with Jesus standing up for an equitable, contextual and holistic legal understanding as against the Pharisees’ painstaking attention to obeying the law to the very letter, as when giving their tithe even of herbs and vegetables, but forgetting about justice all the while (Lk 11:42). Here, the Greek and Roman tradition of juxtaposing law and equity came in as very useful to describe this division with the Jews being on the side of the law and Jesus and his followers as agents of equity. Such reading, it has to be noted, ignores the prevalence of equitable aspects in the Jewish Bible as outlined above. It also sidelines contrastive passages in the Gospels where Jesus is shown to support the adherence to legal detail, such as Matth 5:17–19, where he threatens anyone who “shall break one of these least commandments” (King James Version). It nevertheless became an enormously influential contrast, not least because here the Christian tradition absorbs the earlier classical tradition, as Kathy Eden points out:
Greco-Roman legal theory conveniently provides Christian philosophy with a way to formulate the breakdown between the Old Dispensation under Jewish Law and the New Dispensation under Christian charity. The spirit of the Unwritten Law, engrafted in men’s hearts, replaces the Letter of the Old Law, engraved on stone tablets. The scriptum of the written law, which looks to the act itself, gives way to voluntas, the intention of the agent. […] The New Dispensation, in other words, is associated with all the more flexible and humane attitudes of equity and natural law, while the Old is identified with the rigor and severity of the written law. […] the early Christian understanding of the two Covenants actually owes its origins to an opposition first systematically treated by Aristotle in his discussions of equity. And this flexible measure of the law court, as we have seen, shares its logical method and its psychology with poetic fiction. (Eden 1986, 136–138)
The Pauline contrast between the law of the old dispensation and the equitable approach in the new, Christian era later shapes Augustine’s hermeneutics, which in turn will constitute a formative basis for Western literary theory to come. Paul’s reference (2 Cor 3:6) to the letter (γράμμα, gramma) that kills and the life-giving Spirit (πνεῦμα, pneuma) gives life” is described by Eden as the way he “appropriates the opposition between scriptum and voluntas” (Eden 1997, 57) as known from the rhetorical tradition, which Augustine, in turn, renders in his translation as littera against spiritus. Eden further points out:
Like voluntas, its older, rhetorical counterpart, spiritual interpretation looks beyond the letter or words themselves to the intention and beyond the part to the whole, even preserving […] its long-standing alliance with equity. (Eden 1997, 57)
Augustine does not, however, simply call for privileging spiritual reading and giving up on the literal. In “On the Spirit and the Letter” he argues that Paul, in 2 Cor 3:6 not only “prescribes that we should not take in the literal sense any figurative phrase which in the proper meaning of its words would produce only nonsense, but should consider what else it signifies” (Augustine, Spirit, Ch. 4; PL 44, 203), but that spiritual support is also needed in straightforward passages which are actually to be taken literally:
Now from this you may see what is meant by “the letter that kills.” There is, of course, nothing said figuratively which is not to be accepted in its plain sense, when it is said, “You shall not covet;” but this is a very plain and salutary precept, and any man who shall fulfil it will have no sin at all. The apostle, indeed, purposely selected this general precept, in which he embraced everything, as if this were the voice of the law, prohibiting us from all sin, when he says, “You shall not covet;” for there is no sin committed except by evil concupiscence; so that the law which prohibits this is a good and praiseworthy law. But, when the Holy Ghost withholds His help, which inspires us with a good desire instead of this evil desire (in other words, diffuses love in our hearts), that law, however good in itself, only augments the evil desire by forbidding it. (Augustine, Spirit, Ch. 4; PL 44, 203)
Augustine opposes a purely figurative style of reading as much as a purely literal style, as both need the spiritual support to bring on the right effect in the Christian reader. In fact, as Kathy Eden shows in her scrutiny of De Doctrina, Augustine here develops a third, Christian way of reading as against both what he considers Jewish reading practices on the one hand and Greek ones on the other:
Cautioned to avoid the extremes of Jewish legalism and Greek allegorism, Christian interpreters are encouraged in all cases to read spiritually – that is, charitably or equitably. (Eden 1997, 62–63)
With this, a broad and complex basis has been established, on which the Western tradition of equity and its controversial negotiations rest, and to which they time and again hark back: a controversy that is deeply intertwined with poetics and rhetoric, and a controversy that continues to this very day. From Aristotle’s early, constitutive formulations all the way to early Christian adaptations, equity, although a prominent theme in conceptualizations of the law, never was understood in purely legal terms. In its very origins in Western cultural history, it is set in a wider context and in fact calls for such contextualization by its very nature. Most of all, its understanding appears as deeply imbricated with discussions on literature (avant la lettre, it must always be noted), and formative features in the discussion of equity also addressed such issues as literary production, and its ontological status, its ethical value and poetry’s effects on the reader in fundamental and formative ways. While these connections have received scholarly attention in the past decades, very little has been done on the question in how far classical Greek and Latin literature as such engaged with concepts of equity as discussed above. The meagre literary references to Homer and (in a negative sense) to Plautus in this section reflect this state of research.
3. Equity in British Law and Literature
While the many associations and divergent meanings of equity will remain firmly within the horizon, the main focus in the following is on equity as a legal concept and its interrelations with literature. In this more specific sense, the European development of equity can be most clearly seen both in conjunction and in contrast with developments of the common law tradition. English legal history is the most obvious place to study this, as equity even developed its own institutional setting there. With such a pronounced and controversial record of equity jurisdiction, the connections to literature can be expected to appear all the more readily. This is why the following parts of the survey will narrow in on British contexts (mainly England and Wales) in an exemplary way before branching out again to a more global perspective in section 4.
3.1. Medieval Re-Conceptualizations
Applying the broad brush, J.M. Kelly rightly summarizes that “the basic stock of law in medieval Western Europe was customary” (Kelly 1992, 139). This may be a major reason, together with the fact that the classical sources, notably Aristotle, were unknown, that equity does not appear as a major issue in the early middle ages: customary law can already be seen as the kind of “flexible rule” in the sense of Aristotle’s Lesbian builders. Another reason may be the holistic view on the law as such. John Alford speaks of “a profound faith in law as the tie that binds all things, in heaven and in earth”:
The laws that operate in each sphere are related to one another, not simply by word, or even by analogy, but in essence. All law is one law. (Alford 1977, 942)
The underlying legal theory, as Alford explains, found its “classic exposition” in Thomas Aquinas, with the main division of law as divine or eternal law, natural law and positive law. The first of these, based on Augustine’s rendering of it, constitutes the divine order; it is “not directive in the sense of human law, but is rather the principle or essence of law, without which all particular laws would be meaningless” (Alford 1977, 942). The natural law is “that part of eternal law necessary to man” and appears as “reason, or that function of reason whereby one knows innately the rightness of certain moral propositions” (Alford 1977, 942). Positive law, finally, belongs to the postlapsarian world when human reason became obscured by sin and hence “required the guidance of a supplementary, positive law”, whose “validity rests upon natural law and through it upon eternal or divine law” to which it has to conform (Alford 1977, 942).
It is obviously this third category, the ‘posited’, and therefore called ‘positive’, law which began to be shaped, most notably in the reign of King Henry II (1150–1189), from localised customary laws controlled by local grandees to a nationwide “common” law of England. As the King himself was not always available, Henry II’s kingdom including considerable territories in Western France, “a central royal court, called ‘the Bench’ began to sit regularly at Westminster” (Baker 2007, 18) from the late 12th century onwards. In the 13th century this led to the formation of two types of central courts of common law, one permanently operative in Westminster (the Common Bench) and one as a peripatetic court where the King would preside wherever he was (the King’s Bench) (Baker 2007, 19–20). Thus, the divinely ordained king was the guarantor of the law throughout his kingdom and its compatibility with the divine law at its base.
These legal developments proved also enormously productive in the literary sphere, as Pollock and Maitland already observed:
Law and literature grew up together in the court of Henry II. Roger Hoveden the chronicler and Walter Map the satirist were among his itinerant justices. Law becomes the subject of literature in the Dialogue on the Exchequer and the treatise ascribed to Glanville. (Pollock/Maitland 1895, I, 161)
Alford, who refers to this passage in Maitland, avers that the “association between literature and law has never been more impressive […] than in Medieval England” (Alford 1977, 941), and Richard Green speaks of a feast for law and literature at this period:
[A]n enormous number of medieval works take the form of legal disputes, couch their allegories as legal proceedings, exploit the dramatic situation of a fictional courtroom, masquerade as actual legal documents, or lean heavily on the lawyer’s terms of art for their imagery and diction. (Green 1999, 410).
In all this wealth of material, however, equity does not come up as a motif or an issue. All the while, it is not that the idea had been lost, since Thomas Aquinas re-vitalised it from Aristotle, as in this passage from the Summa Theologiae, with his much-quoted example of the city under siege:
Now it often happens that even though the observance of a certain practice is useful for the common welfare in the greater number of cases, there are nonetheless some cases in which it is especially harmful. Therefore, since a lawmaker cannot foresee all the individual cases, he makes the law with an eye toward what happens in the greater number of cases, while directing his intention to the common advantage. Hence, if a case arises in which the observance of such a law is harmful to the common welfare, it should not be obeyed. For instance, if in a city under siege it is mandated by law that the city gates should remain closed, this is useful to the common welfare in the greater number of cases. However, if a situation arose in which the enemy were pursuing certain citizens who had important roles in preserving the city, then it would be extremely damaging to the city if the gates were not opened to them, and so in such a case the gates should be opened – in opposition to the letter of the law – in order to preserve the common welfare, which is what the lawgiver intends. (Aquinas I,2, quest. 96, art. 6)
Thomas Aquinas’ concept of equity set out here is to be read against the firm belief in the divine law ruling supreme. And it is not the theory, but legal practice, as Alford suggests, that gradually began to change: “legal theory was increasingly at odds with legal practice. Indeed, even as the theory was proving most fruitful for poetry, it was being undermined by changes in law and in the administration of the law” (Alford 1977, 948). Among such changes in the administration of law which undermined the concept of one holistic and unified law was “the rapid growth of statutory law”, another was the “expansion of the court system – a by-product of the increased legislative activity” which resulted in “one kind of justice in the manorial court, another in the king’s bench, another in the chancery, another in the admiralty, and so forth” (Alford 1977, 948). It is here, in the emerging Court of Chancery as one of these various arenas of legal practice that equity became a major issue, grew in importance and became increasingly controversial.
3.2. Equity in the Court of Chancery
Of the several courts of law that evolved in the later middle ages as central judicatory agencies in England, the emerging Court of Chancery stands out as it is the only one to develop a jurisprudence of its own and that was focused on equity. Its origins can be seen as an effect of the successful institution of common law courts directly responsible to the King. It is only natural to think that, when someone felt wronged or not treated fairly by one of these courts, they would seek redress from the King himself. The King, for his part, was sworn, as in Edward II’s coronation oath, “to do equal and right justice and discretion in mercy and truth”, and reigned in by statutes, from Magna Carta onwards. However, as John Hamilton Baker writes, he “retained an overriding residuary power to administer justice outside the regular system” (Baker 2007, 98), and that in particular when the judiciary system was at fault. Increasingly, people who felt not fairly treated by law would send a petition, a “bill”, to the King who would either take an interest himself or pass it on to the King’s Council. These bills had become very numerous by the 14th century. Where a fundamental change in law or legal practice was sought, the bill was forwarded to parliament for statutory consideration, while private suits might be handed on to the King’s individual councillors. Of these, the chancellor was the most prominent, as he was in charge of the great seal, so that all important documents had to pass through his office, the Chancery (cancellaria) located in the king’s chapel. While chancellors in the 14th century would still be thought as “acting on behalf of ‘the king and his council in Chancery’”(Baker 2007, 101), and complaints could then be remedied either by legislative measures in parliament or, in individual cases which did not call for a general ruling, by decrees made in the name of the King and his Council. Baker notes a change in the 15th century when “the chancellor came to issue decrees in his own name” in this context:
In making such decrees, medieval councillors or chancellors did not regard themselves as administering a system of law different from the law of England. They were reinforcing the law by making sure that justice was done in cases where shortcomings in the regular procedure, or human failings, were hindering its attainment by due process. (Baker 2007, 102)
Chancellors up to the 16th century were typically recruited from the ranks of the bishops and hence would see their role against a religious background. Their court was called a “court of conscience” (a phrase in use since the early 15th century; see Baker 2007, 103 fn. 29) and the chancellor himself came to be seen as “the keeper of the king’s conscience”. Even if the first use of the latter epithet is of uncertain historical date (Watt 2009, 48, fn. 3), the logic is clear: In the feudal order the king is above all others but subordinate to God, who would direct the king through his conscience. The chancellor, until Tudor times as a bishop, would then be entrusted with the care of the link between God and king, and this is how his judicature could become focused on decisions of conscience, which could, by extension, also be delegated from the king’s to the chancellor’s conscience (for further explorations on this see Klinck 2010).
However, conscience, understood in this way, is only indirectly linked to the existing laws in so far as, following the theory as found in Thomas Aquinas and elsewhere, it reflects and links up to God’s eternal law, in this way also to natural law; it hence can become a corrective to the postlapsarian and fallible positive law. This rationale could, from bottom up, look suspiciously like absolute power, as the possibilities to define its limitations were very vague. Sharon Dobbins describes this circumstance as “at least one of the reasons” why the Chancellor’s “court of conscience” became a “court of equity” in Tudor times (Dobbins 1991, 119). Gary Watt argues for a very early association of the office of the chancellor with equity, going back before Magna Carta, even if explicit references to equity remain rare at that time. Such pairing of equity and conscience with a view to the chancellor’s jurisdiction is explicitly documented for the 15th century, Edward IV stating his will in a writ “that all manere of maters to be examyned and discussed in the Court of Chancery, shuld be directed and determined accordyng to equite and conscience” (qtd in Watt 2009, 49; see also fn 10). Although equity’s relation to (common) law had been and was to remain highly contentious, this relation had a much more tangible discursive history and seemed to be better accommodated within the legal field – be it only as a bone of contention. While conscience might prove a delicate subject, especially when the conscience concerned was the King’s, equity would lend itself to discussion on the more neutral ground of legal argumentation and hence could appear as a viable instrument to circumscribe the discretionary powers of the chancellor’s court.
The number of cases brought to the Court of Chancery had increased steadily, starting from the 15th and becoming dramatic in the 16th century. This change was both in quantity, but also in kind, since the majority of cases now concerned real property, surely one consequence of the far-ranging re-distribution of lands and properties after the dissolution of the monasteries under Henry VIII. Such increase also put pressure on the common law courts and substantial adjustments at common law were the result. In the end, equity became narrowed down to specific areas of legal dispute and the character of the Court of Chancery underwent a further development, as John Hamilton Baker writes:
As the property jurisdiction waxed, the other aspects waned. […] By Elizabethan times the Chancery was too busy to concern itself with petty matters […]. The Chancery had ceased in reality to be an extraordinary court. Although it retained procedures which were extraordinary in the sense that they were outside the common law, and was beginning to develop principles of its own, it had become a court of constant resort. (Baker 2007, 105)
Interferences between the common law and the newly consolidating equity judiciary were to be expected. Trouble arose with the chancellorship of Cardinal Wolsey (1515–1529) who had no legal training and attracted the reproach of arbitrariness and arrogance in his administration of chancery law. Things seemed to look better when Sir Thomas More was appointed Wolsey’s successor (1529–1533), as More was educated in common law. More, had, however, acquired experience in all sorts of legal contexts including equity jurisdiction, and Bradin Cormack writes that his appointment to the Lord Chancellorship in 1529 “brought to a culmination his already long engagement with equity and conciliar justice” (Cormack 2007, 87). Cormack further points out how aspects of law and equity were ingrained in the very structure of More’s earlier Utopia (1516) which, Cormack demonstrates, “follows an explicitly jurisdictional structure, using the procedural differences between English equity and the common law to describe the mutually constitutive relation between a legal norm and the particular it orders” (Cormack 2007, 91–92). This raised expectations in the common law judges that relations with the chancery would improve. When they were disappointed because More emphatically supported equity jurisdiction against the rigours of the common law, More invited them to dinner to talk things over. William Roper, More’s son-in-law and first biographer, who was present on this occasion, reports:
[A]fter dinner when he had broken with them what complaints he had heard of his injunctions, and moreover showed them both the number and causes of every of them in order so plainly, that, upon full debating of those matters, they were all enforced to confess, that they, in like case, could have done no otherwise themselves, then offered he this unto them, that if the justices of every court, unto whom the reformation of rigour of the law, by reason of their office, most specially appertained, would, upon reasonable considerations, by their own discretions (as they were, as he thought, in conscience bound) mitigate and reform the rigour of the law themselves, there should from thenceforth by him no more injunctions be granted. (Roper 1905, 44–45)
The judges flatly refused, and More privately communicated to Roper his assumptions on the reason for this refusal:
For they see, that they may, by the verdict of the jury, cast off all quarrels from themselves upon them, which they account their chief defence, and therefore am I compelled to abide the adventure of all such reports. (Roper 1905, 45)
What Thomas More addressed here is the possibility of integrating equitable considerations within the framework of the common law and avoiding the confrontation between the two fundamental legal principles of justice and equity. He did not succeed. John Hamilton Baker marks a caesura here:
Until More’s time it could still be argued that equity or conscience operated in all courts, albeit to an extent which varied with the degree to which individual circumstance could be revealed to the court. […] Thereafter equity would increasingly be regarded as the peculiar prerogative of the Court of Chancery. As a consequence, equity itself became a kind of law, in the sense of a body of coherent principles, and the original rationale of the chancellor’s bill jurisdiction faded into history. (Baker 2007, 107–108)
Thus, there had been a line of writers that brought the classical concept of equity in line with the requisites of the evolving court of chancery, as Alan Cromartie traces them from Jean Gerson’s (1363–1429) and Sir John Fortescue’s (1394–1479) influence on to Christopher St. Germain (1460–1540), whose seminal Doctor and Student (1518) starts ch. 16 of the first dialogue on equity thus:
Equity is a right wiseness that considereth all the particular circumstances of the deed, the which also is tempered with the sweetness of mercy. And such an equity must always be observed in every law of man, and in every general rule thereof: and that knew he well that said thus, Laws covet to be ruled by equity. (St. Germain  1866, 44)
Still, St. Germain, as Thomas More, saw equity as part and parcel of the law, whereas Edmund Plowden (1518–1585) provides a prominent example for an understanding of equity as “no part of the law, but a moral virtue that reforms the law” (qtd. Cromartie 2017, 334). For this, he was in turn taken to task by Edward Hake (1564–1604) who, adopting Gerson’s view that each law already contained its own exception, could aver that “the common law of England would […] seem to be a law consisting for the most part of equity” (qtd. Cromartie 2017, 335). It has moreover been pointed out that there is a strong link from the concepts and practices of religious casuistry to these discussions around equity at the time. Peter Platt summarizes: “Like equity then, casuistry is a method of discourse and thought that provides for a negotiation between the universal and the particular” (Platt 2009, 102; for further bibliographic references see Platt’s fn. 21 and 22). Throughout the period, equity had persisted as a focus of scholarly discussions, further including William Lambard’s Archaionomia (1568); William West’s Symbolaeographia (1590); William Perkins’ Epieikeia, or A Treatise of Christian Equity and Moderation (1604); Francis Bacon’s The Advancement of Learning (1605) with extensive references to equity and Thomas Ashe’s Epieikeia (1609).
Meanwhile, the working relationship between equity jurisdiction in Chancery and the common law courts was by no means unilinear in this formative period in early modern Britain. It ranged from harmonious cooperation to acerbic rivalry. Thus, Anthony Benn (1569/70–1618), lawyer, advocate in chancery and later judge, wrote that the “Court of Chancery and common lawe Courts are all sonns of one Father” (qtd in Smith 2014, 213). Benn’s unpublished, conciliatory manuscript was written during what perhaps was the most notorious feud between the common law and chancery, personified in the opposition between two influential and strong-willed men: Sir Edward Coke, attorney-general prosecuting such illustrious cases as Sir Walter Raleigh, then created Chief Justice first of the court of common pleas (1605) and eventually of the King’s Bench (1613), stood at loggerheads with Thomas Egerton, Baron Ellesmere and Viscount Brackley, Lord Keeper (1596–1603) and Chancellor (1603–1617). Egerton had submitted to the outcome of a discussion in the case Finch v Throckmorton (1597) against any right of the chancery to intervene after judgement had been passed at common law, but as his power rose and he became Lord Chancellor, he proliferated the award of injunctions against common law judgements, imprisoning those who did not follow the injunctions for contempt. Coke, in response to this, set these prisoners free by habeas corpus and even suggested they sue their opponents for disobeying judgements of the king’s courts (see Baker 2007, 108–109). This struggle between the Chief Justice and the Lord Chancellor came to a head in the Earl of Oxford’s Case (1615). The Earl of Oxford had indirectly bought land from Magdalene College, Cambridge, bypassing a statute prohibiting the sale of College lands by making the Queen an intermediary (for details see Mitchell and Mitchell 2014, 1–32, and Watt 2009, 67–76). Oxford’s title to the land was now again disputed by Magdalene College. While Chancery upheld Oxford’s rights on the equitable grounds that he had bought in good faith and invested in the lands, which Coke opposed, as Gary Watt explains, as part of his “wider commitment to restricting royal prerogatives in accordance with his belief that monarchy is established under the common law and not over it” (Watt 2009, 68). The conflict was eventually referred to the King himself, who ruled in favour of the Court of Chancery by an order of 14 July 1616. In one sense, Gary Watt is right in suggesting that the case and James I’s ruling on it “established the principle which maintains equity’s pre-eminent status to the present day: ‘where equity and law conflict, equity shall prevail’” (Watt 2009, 72). However, the contrary view that the case “in no sense decided the issue” (Mitchell and Mitchell 2014, 32) has also its justification: Egerton died the following year and was succeeded by Francis Bacon as Lord Chancellor who tried to calm the waves. Still, the squabbles between the Courts went on, with a bill being introduced (unsuccessfully) in the House of Commons as late as 1690 “to restrain the interference by Chancery in any suit for which the proper remedy was at common law” (Hanbury and Martin 2015, 12).
A major effect of these developments on equity in the course of the 17th century was its dissociation from a mere reliance on conscience, as John Selden memorably put it:
Equity is a Roguish thing, for Law we have a measure, know what to trust to, Equity is according to Conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’Tis all one as if they should make the Standard for the measure, we call [a Foot] a Chancellor’s Foot, what an uncertain Measure would this be? One Chancellor has a long Foot, another a short Foot, a Third an indifferent Foot: ’Tis the same thing in the Chancellor’s Conscience. (Selden 1847, 64)
In fact, as Hanbury and Martin have it, “equity was transformed from a jurisdiction based upon the personal interference of the Chancellor into a system of established rules and principles” (Hanbury & Martin 2015, 12). Baker writes of a “reduction of equity to a system or principles”: “Thus equity hardened into law”, and, quoting Carlton Kemp Allen, “Rigor aequtiatis set in” (Baker 2007, 110, 111, fn. 80). And this was to remain the overall tendency up to the reform years of the 19th century.
3.3. Equity in Medieval and Early Modern British Literature
3.3.1 Medieval English Literature and the Law
Law and literature had, in Stephen Yeager’s assessment, parallel developments in the middle ages. Yeager shows “how the parallel formalisms of ‘literature’ and ‘law’ came to serve as this framework for defining the various secular functions of writing” (Yeager 2018, 96). Equity appears obliquely in his reading of Chaucer’s “The Man of Law’s Tale” in The Canterbury Tales, based on “The Tale of Melibee” by the Italian notary Albertanus of Brescia “in which a wife, Prudence, advises her husband and seeks to mitigate his desire for vengeance and justice” (Yeager 2018, 105). Otherwise, Yeager’s essay remains symptomatic in so far as the connection between medieval law and literature is widely underestimated, if not neglected, in historical assessments, which often jump from describing “origins” in classical antiquity and early Christianity, extend a philosophical link to such milestones as Thomas Aquinas, but sideline literary engagements with law in general and equity in particular in the medieval “interim” (this holds largely true for, e.g., Eden 1986, Eden 1997, Fortier 2005, Visconsi 2008). The historical fast-forward perspective on medieval law and literature is, however, at risk to pass by valuable cross-currents between the two emerging fields in that period. In fact, the richness of material and discussions presented by Conrad van Dijk (van Dijk 2009) in his study on equity in Langland and Gower, including the wealth of earlier and ongoing research he references, suggests that here is a treasure trove of highly interesting material still waiting to be raised.
Thus, reading Langland’s Pierce Plowman (written c. 1370–1390) and Gower’s Confessio Amantis (1390) which both variously contain references to equity, van Dijk writes that “we cannot be sure that either poet understood equity as separate from the common law” (van Dijk 2009, 316), but he finds that both texts “participate actively in the larger debates about how the common law might be remedied by other forms of law, and to what extent the king should involve himself in the legal process” (von Dijk 2009, 315). Equity emerges as a highly polyphonal cluster of concepts at this period, the discussion of which was still unfocused and varied, and could even be “associated with strict retributive justice” (van Dijk 2009, 334), as in John Lydgate’s Troy Book (1412–20). Generally, the potential sources and influences were numerous:
Not only could medieval writers choose between Aristotle, Cicero, and Hostiensis (who popularized the canonist definition), but the notion of equity was also imbedded in a famous definition of justice by the Roman jurist Ulpian. (van Dijk 2009, 319)
In fact, it is Ulpian’s maxim of the suum cuique (see 2.2.4 above), “generally interpreted as a circumlocution for equity” (van Dijk 2009, 319), which van Dijk perceives as particularly influential here, concluding on Langland:
Equity thus represents justice before it is tempered by the sweetness of mercy. Indeed, equity in Langland refers less to the application of the law to doubtful cases or to a tempering of the rigor of the law, than to a sense that before there can be pardon […] justice must be served and amends must be made. (van Dijk 2009, 322)
Clearly, equity remained a highly fluctuating concept at that time, but that does not lessen its impact; on the contrary, right because the discussion on equity and related concepts was so wide-ranging, it may have left a formative imprint on the literature at the time, an imprint which clearly calls for further study.
Nevertheless, J. Wilson McCutchan’s earlier examination of the figures of Justice and Equity in the English morality play may be more than just anecdotal in its findings. McCutchan documents that Justice appears in eleven such plays before 1617, beginning with the Castle of Perseverance (ca. 1405). Interestingly, however, he identifies two further plays, King Daryus (1565) and Liberality and Prodigality (1602), where the figure of Justice has been replaced by the figure of Equity, concluding:
It is in the concept of Equity in these two plays that the evolution of Justice from a theological abstraction to a civil servant attains its final development in sixteenth-century drama. When playwrights substituted Equity as the personified abstraction performing those offices formerly assigned to Justice we may assume that they conceived of Justice as primarily a legal force with judiciary functions. (McCutchan 1958, 409)
This appearance of the personified Equity on the stage roughly corresponds with the time of growing tensions in the relationship between common law courts and the chancery, when the discussion of and reflection on equity became focused and acute, not least because the common law was becoming ever further established and centralised. This happened to an extent that Mark Fortier sees early modern England as “in addition to whatever else it may be usefully called, a culture of equity” (Fortier 2005, 2) – a culture in which both law and literature had ample, but not exclusive shares.
3.3.2 Philip Sidney
As its title already suggests, Sir Philip Sidney’s influential Defence of Poesy (1595) was written on formal forensic precepts. The observation was already made by Kenneth Orne Myrick in 1935:
Now when the art of poetry is on trial, there is obviously no question of what the defendant did at a particular time or place. As in a suit for libel, the character of the defendant is the point at issue, and the significant evidence is his past life and his reputation. It is, therefore, with precisely these two subjects that Sidney deals in his narratio. (Myrick 1935, 58)
Although Sidney’s main issue is with history and philosophy, against which he compares, confronts and judges poetry, law comes in on the sidelines, as in this comparison to the historian: “The lawyer saith what men have determined; the historian what men have done.” (Sidney 1595, 216). Defending poets against the old Platonic accusation of telling lies, and expounding on his famous explanation that the poet “nothing affirms, and therefore never lieth”, Sidney resorts to legal comparison:
But hereto is replied that the poets give names to men they write of, which argues a conceit of an actual truth, and so, not being true, proves a falsehood. And doth the lawyer lie then, when, under the names of John of the Stile, and John of the Nokes, he puts his case? But that is easily answered: their naming of men is but to make their picture the more lively, and not to build any history. (Sidney 1595, 235)
It is clear that Sidney here has recourse to a forensic perspective on intention as the central criterion to decide the case for or against poetry. He thus joins the long tradition of discussions on law and equity. This is pointed out by Kathy Eden who sees close parallels between Sidney’s conception of poetry and traditional views on equity:
This isolation of intention, used by both Augustine and Sidney to qualify the activity of the poet, served Aristotle, before them, in his defense, but with a difference. In the Poetics, Aristotle defends poetry as an instrument of knowledge insofar as it clarifies the causes of action by disclosing the characters and intentions of the agents. In this way, poetry in the literary arts corresponds to equity in the legal sciences. (Eden 1986, 160)
In the direct comparison, Eden’s argument continues, “Sidney distinguishes the law not from equity (as Aristotle had done) but from poetry” (Eden 1985, 162). Thus, poetry and equity serve parallel functions in Sidney’s conceptualization. Although Sidney never uses the term “equity” in his Defense, he clearly shapes a place for poetry in culture and society which equity was gaining in the legal frameworks at this period.
3.3.3 Edmund Spenser
Edmund Spenser’s epic poem Faerie Queene (1590–1596) provides in Book V, entitled “The Legend of Artegall or of Justice”, arguably the most sustained literary engagement with equity in early modern English literature. Book V centres around the exploits of Artegall, “the Knight of Justice”, whom the Faerie Queene sends on the mission to Irena (variously seen as Ireland) “to right her to restore; / For that to her he seem’d best skild in righteous lore” (Faerie Queene V.i.4). Sir Artegall is best suited for this undertaking as he was adopted and brought up by Astraea, goddess of justice, when she, in prelapsarian times, “here mongst earthly men did dwell, / And in the rules of iustice them instructed well” (Faerie Queene, V.i.5). In Artegall’s education by Astraea, equity took an important part:
There she him taught to weight both right and wrong,
In equall balance with due recompence,
According to the line of conscience,
When so it needs with rigour to dispence. (Faerie Queene, V.i.7)
Elizabeth Hale notes on this passage: “The last line is ambiguous: it describes both equity’s power to act with greater rigour than the letter of the law requires if conscience demands it, and its power to mitigate the law’s rigour” (Hale 1999, 123).
Here, the complexity of Book V (as of the entire epic) already becomes obvious. In fact, Book V, read earlier as a straightforward political allegory on the situation in Ireland at the time, received unfavourable comment. Symptomatically, Alfred Bradly Gough wrote in 1921: “It was not easy for Spenser to make the petty military operations of Gray, with their accompaniment of ceaseless hangings, massacres, burnings, and harryings the crowning achievement of the heroic Knight of Justice” (Gough 1921, 317; qtd. in Faerie Queene, 525). Albert Charles Hamilton, in his introduction to Book V, shows how this negative reading as direct historical allegory changed with approaches like Thomas K. Dunseath’s (1968), whose focus on character “demonstrates the progress in the Book from justice absolute to equity and finally to mercy” (Faerie Queene, p. 525). Hamilton also summarizes various perspectives on the structure of the book. Thus he sums up Knight (1970) for whom “Equity provides the narrative unity of Book V” and Phillips (1970) whose view he records that “Justice Absolute is illustrated in the six narrative episodes in the opening four cantos, Equity in the central cantos, and Mercy in the six narrative episodes in the final section of the Book” (Faerie Queene, 526).
Mark Fortier makes a brave attempt to order this cacophony of conflicting, and indeed competitive, readings. He identifies five “strains of interpretation”, critically evaluates them and concludes:
I don’t believe there is an easy way to pick among these strains of interpretation; each reveals something about equity in The Fairie Queene, but each also has profound limitations. As a full reading of the text, neither the first or second readings (that equity is simply mercy or harsh justice), one-sided as they are, is persuasive, undermined as each is by opposed textual elements it cannot explain. Similarly, the third reading (that equity moves in a fallen world) offers too facile a reconciliation of irreconcilable textual material. The fourth and fifth readings (that Spenser is a duplicitous apologist for imperialist oppression or an artistic failure) neglect that there might be value and integrity in the marshalling of complexity and contradiction. (Fortier 2005, 121)
Fortier thus upholds the multifacetousness of the negotiations of equity in Spenser’s epic and, in place of a unilinear reading, declares this plurivocity as the result of research so far. This claim probably continues to hold, as further work appears, with James Schiavoni focusing on the institutional backdrop and seeing “Spenser’s representations of law [as] influenced by a bitter struggle between common law and prerogative courts” (Schiavoni 2010, 23), or Andrew Majeske, who differentiates between two antigonal kinds of equity apparent in Book V, an older type he calls “flexible equity” associated with the feminine, and a newer, male-connoted kind he calls “rigid equity” (Majeske 2006a, 71). Majeske then reads this distinction against the situation of royal succession at the English Court at the time: “Spenser, I argue, was worried that Elizabeth might choose in favor of a female contender – a possibility in conflict with his views on the appropriate purpose and scope of women’s rule” (Majeske 2006a, 90). Clearly, the jury is still out on a consensual assessment of Spenser’s position on equity (as on so many other issues in this epic), and Mark Fortier’s assessment may eventually hold in that such ambiguity could, of course, be precisely Spenser’s point. At the same time, many of the contrastive readings show more than just the fact that equity, at the time, was an important cultural battle-ground, but can highlight connections and implications in the various positions which make for highly stimulating discussions to this day.
3.3.4 William Shakespeare
The controversial ambiguity encountered with readings of Spenser’s work will also dominate surveys of equity in William Shakespeare’s drama. In view of the centrality of equity in early modern Britain, it is hardly surprising that it also emerges as a major issue in Shakespeare. However, the word occurs, now perhaps surprisingly, only four times in Shakespeare’s works (2 Henry VI, III.i.146; King John, II.i.141; 1 Henry IV, II.ii.100; King Lear III.vi.37); none of these occurrences are, once more unexpectedly, in the two plays that have drawn the most extensive, variegated and searching comments on the topic of equity, Measure for Measure and The Merchant of Venice. Where The Merchant of Venice (1596/7) is concerned, the central and controversial figure of the Jew Shylock and his insistence on the letter of the contract which entitles him to the forfeited pound of flesh for unpaid debt has invited readings where he epitomizes the old law of the Old Testament with its priorities on the letter of the law and the strictness of its administration against the equitable, merciful approach looking at intention and informed by the spirit to be found in the New Testament (see e.g. Colley 1980). From this, as in Ruth Levitsky’s argument, it is a short leap to associate Shylock with unregenerate barbarism and the Venetian court with Christian civilization: “It was not unusual for Elizabethan divines to class the Jew with the Turk or pagan, seeing all as guilty of glorifying ‘natural man’” (Levitsky 1977, 60). Jay Halo and others have argued against this reading, considering it as “a mistake […] to see here an allegory of Old Testament Law versus New Testament mercy” (Halio 1993, 60; for further examples see Sokol 1999, 422 fn.26), as equity is not unknown in Jewish legal understanding (see Kornfeld 2020). It is obvious that the discussion of the Jewish (legal) imaginary embodied by Shylock has been a particularly sensitive issue in the post-WWII and post-Holocaust reception of the play, notably of course in Germany (see e.g. Verch 1985; Ackermann and Schülting 2011).
Beyond this ambivalence about traditional typologies, there is also the argument, in line with observation of the absence of the term in the play, that The Merchant of Venice is not about equity at all. As early as 1883, Cushman Davis wrote that “the law language of Shakespeare is that of the common law, and not of the equity jurisprudence” (Davis 21884, 117), and continues on the court case of Shylock in Merchant of Venice:
Had Shakespeare been a chancery lawyer he might have caused an injunction to be served on Shylock, and avoided the unsatisfactory and quibbling process by which Portia rescued the merchant from the knife of the Jew. (Davis 21884, 118)
In their survey, Sokol and Sokol take the same stance and consider as “unfounded a widespread belief that the trial in The Merchant of Venice is concerned with the vicissitudes of the English jurisdiction of equity” (Sokol and Sokol 1999, 417), relegating this view to a coterie of interpretations of the play taking off in the 1960s. Keeping equity out of the purvey of this play is equally tricky, however, as Mark Fortier notes as to Shylock’s suit that “here the law grants not damages but specific performance – the pound of flesh – which is an equitable, not a legal remedy” (Fortier 2005, 125). Fortier references Kornstein on this view, who, however, goes on to make the entire law suit and trial scene seem unrealistic, concluding:
[T]he contract simply would not be enforced – under medieval Venetian law, under Roman civil law, under the English law of Shakespeare’s time, under current American law – or under any other civilized system of law. (Kornstein 1994, 72)
This confusion has led other scholars to suggest that opening such legal issues about the trial in this drama may mean asking the wrong questions, since Shakespeare, as Halio puts it, “was, first and foremost, a dramatist” who in this phase of his work “became increasingly adept at using trial scenes – or what amounted to trials – for dramatic effect” (Halio 1993, 57–58). Even if that poetic licence is granted, the popularity and complexity of the drama would still engage with current legal ideas and discussions, but perhaps not on a one-to-one basis. This leaves the further option to read The Merchant of Venice not as a statement of any particular legal view or position, about equity, common law or otherwise, but about exposing the complexities, the dilemmas and ambiguities in the situation of the law at the time in general, which is what Fortier has in mind when he calls Shakespeare “one writer who seems to be most interested in sticking to the dilemma, or even making it worse” (Fortier 2005, 128). The latter position has at least the validity that no consensus on the multifarious legal conundrums posed by this play has been achieved in its long and controversial reception history.
Shakespeare’s other much-discussed play in matters of equity, Measure for Measure (1604), shows similar complexity. The word “equity” is not mentioned, as opposed to Shakespeare’s main source for this play, George Whetstone’s Promos and Cassandra of 1579, where equity is explicitly referred to. However, Shakespeare’s title itself, harking back to the Bible (Matth 7:2) and used by Shakespeare elsewhere (3 Henry VI II.vi.5; Titus Andronicus V.iii.66), already expresses one of the shades of equity as aequitas, using the same measure in meting out justice. What is more, the figure of the Duke seems to suggest itself as an impersonation of equity which is contrasted with the rigorous administration of the strict letter of the law by his deputy Angelo. At first glance then, this character constellation seems to invite a straight allegorical reading, with the ruler instituting (common) law (i.e. Angelo) to adjudicate in his absence, but stepping in as the impersonation of equity to prevent nefarious effects caused by Angelo’s rigid administration of the letter of the law. Gary Watt notes to the point that the Duke characterizes Angelo as “precise” (Measure for Measure I.iii.50), which corresponds to the Greek ἀκριβής (akribes), used to describe the strictness of the law in contrast to equity, which would then be assumed by the Duke himself (Watt 2009, 220). A closer look quickly reveals that such typology can only be a background foil against which to read the complications of the play. The Duke remains anonymously present and shows vested interests in his own love for Isabella, and Angelo’s main fault is not, as David Bevington points out, his legal attitude: “Angelo’s failure in the Duke’s eyes is not that he is too severe, but that he is corrupt.” (Bevington 2013, 164). Equitable remedies which would offer themselves in the course of the play are strangely left aside, as Eric Spencer argues:
Isabella acknowledges Claudio’s guilt, accepts his harsh sentence, and requests, not a penalty more justly commensurate with the crime – not, in other words, an equitable adjustment that fulfils the spirit of the law against the injustice of its letter – but the undeserved gift of mercy. (Spencer 2012, 168)
This is why Spencer concludes that, in Measure for Measure, equity is “a road conspicuously not taken”, but then immediately claims: “But because the play strenuously excludes it, I suggest, equity illuminates the problem the play poses” (Spencer 2012, 168). Andrew Majeske gives another spin to “equity’s absence” in this play, arguing that critics wrongly “have read equity into the play” (Majeske 2009, 170). He argues that the “emphasis on equity insisted on by many critics acts to conceal the significance of the extreme actions Duke Vincentio takes to restore Vienna to the rule of law” (Majeske 2009, 178). He only allows for the presence of a wider concept of equity in the play that includes and uses mercy, while rightly insisting on keeping the two concepts strictly separate (Majeske 2009, 178). The kaleidoscope of variant readings calls for continued discussions, which Mark Fortier opens by concluding his discussion of the play with questions: “Is impartiality always best in a judge? Is partiality always a bad thing? Where does equity lie?” (Fortier 2005, 124).
The greater part of these critical studies on The Merchant of Venice and Measure for Measure perceive equity staged in some sort of opposition or difference to the law. Pater Platt follows in this setup but casts the juxtaposition in a positive and productive light by reading it in the context of the Renaissance culture of paradox. He moreover uses a “double perspective”, adding to the historical view an interest in the understanding of “our culture of paradox” (Platt 2009, 18), so as to add a powerful hermeneutic slant to his historical study. Platt sees this paradox already present in Aristotle’s explanation of equity which comes down to saying that the equitable “is just, and it is not; equity is both similar to and different from the just” (Platt 2009, 98). His reading of Shakespeare’s central two plays yields this conclusion:
Like paradox, Shakespeare’s version of equity can be seen to play it safe, to dance around the problem of power without committing to a critique of it, to recognize ambiguity as a way, inevitably, of reinscribing power. (Platt 2009, 137)
Equity has become an issue in readings of further plays by Shakespeare, even if never with the same intensity as in The Merchant of Venice and Measure for Measure. Thus, Sokol and Sokol focus on the cutting of the trial scene in King Lear (III.vi.35–39) in the Folio edition of 1610, while “in the 1608 quarto edition Lear places ‘justice’ and ‘equity’ side by side on a single bench, as co-operative ‘yoke-fellows’” (Sokol & Sokol 1999, 437). Against the background of “an intensely political struggle growing between jurisdictions”, this harmonious approach was no longer possible. Falstaff’s reference to equity in 1 Henry 4 II.ii.71, one of the four occurrences of the term in Shakespeare, has received pointed attention in Charles Phelps’ early book-length study (Phelps 1902) where he explores the scene against the background of a narrowly legal understanding of equity as the Chancery’s jurisdiction while neglecting its wider dramatic and symbolic significance. This, at least, is Gary Watt’s critique of Phelps. Watt gives his own alternative interpretations, including a “cynical and troubling reading” which he then rejects to conclude on “the intention to associate equity with virtue and to associate equity with the Prince” (Watt 2009, 211).
The complication of the revenge pattern in Hamlet has also received attention involving discussions of equity. Focusing on the issue of intention in concepts of equity jurisdiction at the time and applying them to the performance aspect of Hamlet, Luke Wilson finds productive analogies between “equity and performance” (Wilson 1991, 94). More recently still, equity in Hamlet has been analysed from a cognitive perspective by Ellen Spolsky (Spolsky 2015 and 2019) who concludes that using a cognitive approach can show how
violent and often unrealistically grotesque plays [like Hamlet; K.St.] suggested how the stuff of audiences’ daily lives was connected to problems in the prevailing legal system, a system that needed to be repaired if it were to be both just and fair[.] (Spolsky 2019, 390)
Even Shakespearean plays with less obvious relevance to questions of law in general and equity in particular have been given interesting readings with reference to equity. Thus, Nicholas Knight points out that “The Comedy of Errors dramatizes a court of equity where the ruler suspends the law, taking the nature of the circumstances into consideration” and points to a parallel in Theseus in A Midsummer Night’s Dream (Knight 1981, 70). The latter play is given a perceptive interpretation by Peter Herman against the republican associations evoked by the setting in Athens, casting Theseus’ role as its ruler in the limelight. In conclusion, Herman comments about the darker side of this play which persists even beyond its happy ending of sorts because of “the play’s troubling of the distinction between equity and tyranny, and its implicit illustration of how the best decisions can have ruinous consequences” (Herman 2014, 24). In the burgeoning research on law in Shakespeare, equity usually comes in for its fair treatment, as can be seen in the several essay collections and surveys that have appeared over the years (see e.g. Jordan and Cunningham 2007, esp. 109–126, 152, 167–188, 205; Raffield and Watt 2008, XXX; Zurcher 2014, esp. 208–221; Cormack, Nussbaum, Strier 2016, 208–221; Raffield 2017, esp. 8, 94; Carpi & Ost 2018, esp. 120–23), as Shakespeare always figures prominently in general considerations of equity and literature (Carpi 2007a; Carpi 2007b; Watt 2009).
This engagement with equity can variously be observed in Shakespeare’s contemporaries, as well, and W. Nicholas Knight has indicated how different this could be. He sees Shakespeare and Spenser in support of equity jurisdiction opposed by other playwrights, notably Ben Jonson and Thomas Middleton, who “criticized and made fun of equity and Chancery preferring common law, predicable, and non-interpretive practices” (Knight 1981, 67). In an earlier article, Knight had summarized:
In the face of rigorous and harsh justice, […] the drama from 1405–1641 presented alternative mercy in theology and equity in the law; and, in turn, […] the theatre borrowed the legal concept of equity to structurally resolve plot situations by introducing a higher, but more arbitrary system of law. (Knight 1972, 65–66)
He also showed that, in the course of the 17th century, the critics of such a “higher system of law” seemed to prevail. Theatre is under the same summary suspicion and shares the fate, as the Puritans “closed the theaters, abolished the Star Chamber, and killed the King” (Knight 1972, 65). Andrew Majeske, in exemplifying such change in the understanding of equity in contrasting Thomas More’s use of it in Utopia and Spencer’s attitudes displayed in Book V of the Faerie Queene, describes this shift taking place from “equity’s traditional use as an infinitely flexible tool that assists the law by concealing their defective nature” to Spenser’s “limiting equity’s jurisprudential role in order to promote the strict application of laws” , “emphasizing the achievement of quick, certain, and predictable results in legal disputes at the expense of flexibility and, consequently, perhaps also at the expense of justice” (Majeske 2006b, 12). Another critical approach to equity has been identified by Luke Wilson in his reading of George Chapman’s The Tragedy of Chabot, Admiral of France (composed 1611–12, published 1635). Wilson writes, commenting on the charge of bribery against Chancellor Poyet, in whose theatrical character he sees allusions to the real (and, as it turned out, venal) Chancellor Francis Bacon:
If drama’s structure is fundamentally forensic (what happened and why, what are the consequences, what would justice consist in, and how, if at all, and can it be achieved?), it pursues these questions through an epistemology (enargeia) and a methodology that are both equitable. But the theatre’s relation to equity can be more complicated, and even more adversarial, than this account suggests. […] in this play [Chabot; K.St.] it is equity, and with it the expectations of an equitable drama, that are vitiated when identified as an equivalent to the respecting of persons. (Wilson 2007, 249)
17th century equity discussions have also been identified and highlighted in John Donne’s work, both in his prose and his poetry. Thus, Katrin Ettenhuber explores Donne’s Lincoln’s Inn sermons which he preached around 1620 and suggests:
Intention still looms large in these discussions, and charity even larger. But charity proves an especially useful thinking tool in the Lincoln’s Inn period because its processes overlap with a legal term that every member of his audience would have known: the controversial and much-contested notion of equity, or legal discretion. […] The interpretive challenges and conflicts articulated in the Lincoln’s Inn sermons emerge primarily from the fraught analogical relations between equity and charity. (Ettenhuber 2011, 163)
Gregory Kneidel turns to Donne’s Satyres, “placing the Satyres within a broader historical narrative about the triumph of the Anglo-American common-law tradition over equity and other minor legal jurisdictions” (Kneidel 2015, 2). Donne served under Lord Chancellor Egerton from circa 1592 until he lost his position because of his marriage to Anne More. During this time, Kneidel argues, “it is formal verse satire that Donne reinvents or reimagines as a poetic form most suited to Egerton’s official jurisprudential agenda”. Kneidel further shows that “Donne actively aligned his satires with the imperatives of equity as both a jurisprudential ideal and an institutional reality” (Kneidel 2015, 6). Kneidel supports his claim “how central equity is to Donne’s satiric style” (Kneidel 2015, 7) even if the word “equity” is never used in Donne’s five poems under scrutiny here. Eventually Donne in Kneidel’s analysis embodies a state of transition in his view of “law that he could no longer think of as sacred or equitable but that he could not quite yet confidently think of […] as rational, formal, centralized, and secular” (Kneidel 2015, 167).
In sum, equity has emerged as a polyphonous and ambiguous concept in early modern Britain. This is particularly true with regard to gender, where modern associations would point towards a positive evaluation of equity. This is not, however, generally the case during this period. Thus, equity is often connoted as female and pliable against the masculinity and rigidity of the letter of the law. In discussing Euarchus’ equitable qualities (or the lack thereof) in Philip Sidney’s Arcadia, Mark Fortier warns that such gendering of equity “hardly holds for most of the sources” he has used in his book and he also rejects the notion “that equity is routinely an idea used to stand up for women and their rights” (Fortier 2005, 114). In fact, although he finds equity frequently concerned with the “others” in society, be they women, dissenters or those subjected to colonisation from the Irish to the indigenous people of the spreading colonies, he notes: “indeed, equity is often a notion in service of what now looks like oppression” (Fortier 2005, 137). This ambiguous nature of equity and its malleability for a variety of sometimes antithetical positions has to be kept in mind.
3.4. Equity in Restoration and Eighteenth-Century British Literature
In her extensive explorations of law in John Milton, Alison Chapman reads Paradise Lost with a strong focus on its stated intent to “justify the ways of God to men” (Paradise Lost I.25). In this process of justification, she argues against critics who see Milton’s God acting ambiguously and impenetrably: “Milton draws on contemporary ideas about how the law works, and in each case, legal principles cooperate with theological ones to show that God’s justice runs a comprehensible course” (Chapman 2017, 6). Milton’s justification of God’s works is effected under the general understanding of English laws at Milton’s time. Equity is not, however, a central issue in God’s justice in Paradise Lost, where the term never occurs. It is only when Chapman quotes Milton’s tract on Doctrine and Discipline of Divorce that equity makes a sideways appearance in conjunction with the law of nature which is open to human reason:
God indeed in some wayes of his providence, is high and secret past finding out: but in the delivery and execution of his Law, especially in the managing of a duty so daily and so familiar as this is wherof we reason, hath plain anough reveal’d himself, and requires the observance therof not otherwise then to the law of nature and of equity imprinted in us seems correspondent. (Doctrine and Discipline of Divorce, CPW II, 297)
This tract is in fact the place in Milton’s work where equity is a central issue, which leads Chapman in her next book on Milton’s prose works to devote a chapter on it. Here she argues that Milton details a type of equity which is internal to the law, and not an outside corrective of it. Chapman concludes: “Roman aequitas […] allows him to argue that God’s laws similarly contain and allow for exceptions, and so divorce is simply a fulfillment of those laws’ equitable core” (Chapman 2020, 93).
Chapman’s findings on Milton are, however, symptomatic for the conclusions according to the current state of research on equity and literature in this period. Mark Fortier, in the most comprehensive survey to date, sums it up as follows:
To be explicit: I do not think that the Restoration and eighteenth century are particularly rich grounds for equity in literature. What one finds most often is a passing reference in a fictional narrative to equity or law and equity […]. Rarely is there exploration or questioning of equity in any complex or sophisticated sense. Poetic equity is a poor shadow of what it was in Shakespeare and Milton’s time. (Fortier 2015, 21)
Of the major studies, few as they are, which Fortier reviews, Elliott Visconsi’s is a tour de force with an eye on literature’s civilizing mission after the disorder caused by the Civil War, within a “move toward a theory of fiction as a medium of comprehensive public paideia”, which he saw “spearheaded” by Sir William Davenant and which he follows through the works of John Milton, John Dryden, Aphra Behn all the way to Daniel Defoe’s Robinson Crusoe (Visconsi 2008, 24). Visconsi has been repeatedly criticized, mainly for being hampered by a narrow, Aristotelian concept of equity (Fortier 2015, 21), for “[trying] to find too many things at once in the texts he reads” (Halliday 2012, 212 ) or, in the case of his reading of Aphra Behn’s Oroonoko, for “a sorry narrowing of her text’s capacious embrace of a much larger and more filigreed historical frame” (Suvir Kaul 2012, E48). While Visconsi’s analyses obviously are open for revisions, such defects may not necessarily devalue his overall approach. Following Wai Chee Dimock (1996), he projects literature as “the domain of incommensurability; it is a language of unevenness that raises open-ended and often painful questions of justice rather than an instrument to deliver the sealed normative rationality of the law […] – questions that might discipline and perhaps regenerate the nation by endowing it with equitable habits of thought” (Visconsi 2008, 34). The search frame still seems productive, but might need adjustment to other issues and foci.
Margot Finn’s work casts Samuel Richardson’s Pamela as a personification of “the spirit of equity” (Finn 2003, 32), a term she quotes from Richard Posner who had applied it to Portia in Shakespeare’s Merchant of Venice (in the second edition of his book; but he retracted it in the third edition; see Posner 21998, 95, and Posner 32009, 149). Paul Polloczek focuses in his reading of Lawrence Sterne’s novels on a “sentimental form of promising” which he considers as “para-equity”: “it is meant to complement the law where the latter fails to live up to the promise of equity that lies at the core of British common law” (Polloczek 1999, 70). Fortier, however, finds the same Aristotelian restrictions in Finn’s and Polloczek’s concepts of equity, and notes that their sightlines really point to the 19th century and concern the 18th century only marginally (Fortier 2015, 21).
Eliza Haywood (1693–1756) is a further writer who has come under scrutiny with regard to equity. Here, Cheryl Nixon’s observations are interesting, because they point out the double critique in Haywood which is directed both at the insufficiency of common law which needs equitable compensation, so to speak, and against Chancery as the Court of Equity for not providing it:
Haywood thus invokes the Court of Chancery as the protector of children, but she quickly condemns the ineffectiveness of the Court in enacting that responsibility. She dramatizes two events: the guardian’s ability to create and maintain a false will because of the uncertainties surrounding the law, and the daughter’s relatives’ decision not to file a bill against the guardian because of the costs and delays in Chancery. (Nixon 2014, 52)
This then is an early example (Nixon refers to a journal contribution by Haywood of 1746) where the usual critique of Chancery about its undue interference with common law is replaced by a direct critique of not providing such relief because of internal shortcomings; a line of literary critique of equity that points forward to the general situation to be found in the 19th century. Nixon further argues, again in an analysis based on the early domestic novel, that literature can provide a “juridical imagination” with significant “cultural power” that integrates the ineffective legal system fragmented as it is between the various courts and legal systems:
The eighteenth-century novel creates a coherent understanding of the law out of a complex and fragmented court system, creating an image of the law that is more powerful than the law’s own self-definitions. (Nixon 2018, 132)
What gave the emerging novel a further edge to fulfil this integrative function is the point in another argument put forward by Cheryl Nixon. This has to do with the kind of record-keeping in law. To take the example of equity jurisdiction, note-taking of Chancery procedure seems only to have begun in the 1590s, with Francis Bacon employing an official reporter from 1617; but regular reporting did not start before 1660, in manuscript that is, of course (Baker 2002, 110). Baker (2002, 111) dates the “first published book on equity” to 1727 (Francis 1727). Doing so probably neglects a number of earlier publications, such as the works by Lambarde, West, Perkins or Ashe listed above (3.2). This, however, only further underscores the time lag with reference to the law reports which remained in manuscript form throughout the 18th century and are only now being made available in reliable printed editions (Bryson 2016, 2019, 2020, 2021). As against that, novels fully participated at the cutting edge of the expanding print culture, as Nixon notes:
Contrasting the manuscript culture of the law is the print culture of the novel. […] Ironically, then, ideas about the law circulated more quickly and more widely in the novel than in the official legal record. Additionally, the novel explored the law within increasingly effective narrative forms that made its critiques emotionally resonant and intellectually compelling. (Nixon 2018, 136)
In sum it is noteworthy in this reading that equity jurisdiction is no longer seen as an overarching remedy that can set to rights what has gone wrong in legal practice, but has become one of many such jurisdictions and practices with its own striking defects. Equity has moved from a potential solution to the problems of law to being one of its problems, and the solutions were offered more effectively by the novel, which seemed to have the more appealing format and the more advanced distribution technology.
Focusing on equity approaches to cases of personal debt, Margot Finn explores equitable concerns in her chapter “Fictions of debt and credit, 1740–1914” (Finn 2003, 25–63). She offers a sustained reading of a series of novels, running from Samuel Richardson’s Pamela (1740/41), Francis Burney’s The Wanderer (1814) through Elizabeth Gaskell’s Ruth (1853), Charles Dickens’ Bleak House (1853) and Anthony Trollope’s Framley Parsonage (1861) to Oscar Wilde’s Picture of Dorian Gray (1891) and John Galsworthy’s In Chancery (1920) to show how in each of these novels equity and contract law stand in opposition or divergence, as “equitable reasoning serves to distinguish proper from improper credit contracts” (Finn 2003, 37) in Pamela, or in “Galsworthy’s broader critique of the disjunction between contractual and equitable principles of legal reasoning” (Finn 2003, 44). She perceives these instances in the wider “sustained literary engagement with consumer society that privileged notions of reciprocity and gift over strictly individualist conceptions of property and contract” (Finn 2003, 63).
When Mark Fortier concludes, then, that the Restoration and the 18th century form “a historical period in which what is interesting about equity happened in areas other than the literary” (Fortier 2015, 20), his assessment now feels both correct and uncertain. He is correct insofar as existing scholarship on equity and literature in this period as of now does not show the same intensity of literary engagements with equity as the previous period appears so richly endowed with. At the same time, new readings such as Nixon’s nurture the suspicion or, indeed, the possibility, that the dearth of such findings may be a result of the lack of scholarly attention given to issues of equity in this period so far; a suspicion or possibility that future studies like Nixon’s might augur to bear out.
Fortier is, however, further right in his claim – and provides ample evidence for it – that equity remained a much-discussed topic outside of the literary sphere. In this respect, Fortier’s short book will remain a milestone, as he has assiduously brought together a host of relevant publications, both in terms of historical sources and their treatment in modern scholarship. Fortier argues in his detailed study, that overall there is a move to “the deemphasizing of Aristotelian particular equity for the sake of a common, civic equity” with further development in the Court of Chancery:
[W]hile common equity was helping further political and social causes with which any progressive-minded person might sympathize, equity in Chancery tended toward dysfunction and injustice. (Fortier 2015, 16)
Taking in Restoration developments and the time of the Glorious Revolution of 1688 as well as the discussions of equity in the context of revolutionary and radical literature in later 18th century Britain, in revolutionary America and then in the British and American perspective on France, Fortier comes to conclude with an eye on equity and literature in the Renaissance which had formed the object of his previous book (Fortier 2005):
[T]he Restoration and eighteenth century produced no comparable poetic or literary works, but did it produce philosophical works extensively or centrally concerned with equity? Legal tracts attempted to systematize rules of equity but were not philosophical explorations of its essence as works of the past had been. Others, again without rethinking the basic meanings of equity, turned to equity repeatedly as a yardstick and term of reference. […] It may be that the intensive focus on equity in the earlier period gave way to a more extensive use [.] (Fortier 2015, 119–120)
The 18th century is also, apart from its philosophical focus on natural law and equity which have some overlap with discussions of justice, the age when law books began to appear and grow in number that dealt with equity. Here, John Selden’s Table Talk, posthumously published in 1689, still has equity as a side issue, but with lasting lines as quoted above. Heneage Finch, Lord Nottingham’s Manual of Chancery Practice and Prolegomena of Chancery and Equity are quoted by Fortier (2015, 16-17), but they were fully published only in 1965, which leads again to Richard Francis’ 1727 publication, mainly as a collection of equity maxims (for further publications on equity see a good list in Holdsworth 1929, 2 fn. 2–7). Henry Home, Lord Kames’ substantial volume Principles of Equity was published in 1760 with a second and third edition following in 1767 and 1778 (Home 2014). For Home, equity has a civilizing role that ultimately improves the common law:
[A] court of equity commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus a court of equity, accompanying the law of nature in its gradual refinements, enforces every natural duty that is not provided for at common law.
(Home 2014, 22–23)
In his introduction to Home, Michael Lobban observes how “[o]nce a rule in equity had become fully established in practice, it became part of the fixed rules of common law” (Home 2014, xv). And equity of course received attention in William Blackstone’s Commentaries, influential and controversial as they were. Blackstone upholds the overarching importance of equity, but also emphasizes its connection with common law in practice:
Equity then, in it’s true and genuine meaning, is the soul and spirit of all law: positive law is construed, and rational law is made, by it. In this, equity is synonymous to justice; in that, to the true sense and sound interpretation of the rule. But the very terms of a court of equity and a court of law, as contrasted to each other, are apt to confound and mislead us: as if the one judged without equity, and the other was not bound by any law. (Blackstone 1765–69, 3:429)
This, in Holdsworth’s early reading, already shows, however, one of the problems in Blackstone’s contradictory account of equity: he here followed the influential view of Lord Mansfield, Chief Justice 1756–88, in that they “both […] ignored the fundamental difference between the point of view of the courts of law and the courts of equity, which is apparent from the very earliest period in the history of the equity administered by the court of Chancery” (Holdsworth 1929, 13).
Equity jurisdiction as much as the general situation of English law at the period called for further reform, although this was slow to come. It leads Barbara J. Shapiro to ask in conclusion of her coverage of the reforms between 1500 to 1740: “Why did the reform proposals result in so few changes?” (Shapiro 2019, 253). Reform came eventually, for law in general and equity in particular, but that points towards the 19th century. How much literature was involved in this process, has attracted intense scholarly discussion, more so than for the earlier period.
3.5 Equity and British Literature in the Long Nineteenth-Century
3.5.1 Law Reforms: Towards the “Fusion” of Law and Equity
London. Michaelmas Term lately over, and the Lord Chancellor sitting in Lincoln’s Inn Hall. Implacable November weather. […] Fog everywhere. Fog up the river, where it flows among green aits and meadows; fog down the river, where it rolls defiled among the tiers of shipping, and the waterside pollutions of a great (and dirty) city. (Dickens, Bleak House [1852/1987], 1)
These sentences from the opening of Charles Dickens’ novel Bleak House (1852–53) are among the most frequently quoted passages in law and literature studies, as they introduce readers so succinctly and imaginatively into the central issue of the novel: the representation to the public and the indictment of the malfunctions of the Court of Chancery at that time, where, as Dickens emphasizes in the 1853 preface to the book, “everything set forth in these pages concerning the Court of Chancery is substantially true, and within the truth”, even if he, as he adds, has “purposely dwelt upon the romantic side of familiar things” (BH xiii–xiv). Numerous scholarly comments on equity in this novel in particular, and on Dickens in general, constitute, as will be documented below, the crest of a wave of research in equity and literature of the 19th century, which comes close to the work done on the Tudor and early Stuart periods. This focus reflects a flurry of discussions of equity in legal and public fora at the time in the context of the wide-ranging social, institutional, political and legal reforms, with the “Great Reform Act”, also called “People’s Act” or “first Reform Act” of 1832 often seen as its epitome and as the parting shot for further reform initiatives in the following decades. Joanna Innes and Arthur Burns share this watershed chronology, but add a useful differentiation:
Historians have variously employed the notion of an “age of reform”: sometimes including within its scope the build-up of pressure for “reform” from the late eighteenth or early nineteenth century, sometimes limiting their attention to the years following the “Great Reform Act” of 1832. A timescale weighted towards the later period is appropriate if the chief object is to assess reforming achievement: the effects of the restructuring of the representative system, or the fates of the diverse legislative projects laid before the “reformed parliament” in its three and a half decades of life. (Innes & Burns 2003, 1)
Their own focus is, however, on the time before the Reform Act, starting around 1780, which they see as the period of “reform as aspiration”: They “survey the kind of reform aspiration formulated from the 1780s – the decade when ‘reform’ first became a political slogan – to the 1830s and 1840s when the enactment of parliamentary and other reforms began to bring about major changes” (Innes & Burns 2003, 1). This specification can also give a useful structuring to the discussions on and development of equity jurisdiction in the 19th century. Here, the coordinates are set, at one end, by the long Chancellorship of Lord Eldon (1802–1827, with a short break in 1806–7). It embodied and in some views brought to a head the negative aspects of equity jurisdiction as they had accrued since the 18th century, thus culminating in a period of aspiration in Innes and Burns’ sense. From this, there was a continuous drive for reform which reached a kind of conclusion in the Supreme Court of Judicature Acts of 1873 (36 & 37 Vict. c. 66) and 1875 (38 & 39 Vict c. 77). Those Acts abolished the Court of Chancery and with it the confusion of further independent courts (Queen’s Bench, Common Pleas, Exchequer, Court of Probate, Court of Divorce, Court of Admiralty) to create a High Court of Justice with a Court of Appeal to go with it. The High Court was organised in five divisions of which Chancery was one, a system which is still in place today, even if Her Majesty’s High Court of Justice in England, thus the full designation, now has only three divisions (Queen’s Bench, Chancery and Family). The emphasis is on “division” in this new High Court, which may imply some procedural difference but no independent jurisdiction.
Frederic William Maitland (1850–1906) soon provided a positive and eirenic version of this reform in his lectures on equity, which he gave between 1888 and 1906 at Cambridge and which were published in 1910. He did not see the pressure for reform originating in conflicting interests between equity and common law, as he opined that, while there had been occasional squabbles in the past, “for two centuries before the year 1875 the two systems had been working together harmoniously” (Maitland 1910, 17). The reason for change appears for Maitland in the inordinate growth of business for equity in the 19th century, in reaction to which the Chancery was expanded: While in 1813 it had only two judges (the Chancellor and the Master of the Rolls), a Vice-Chancellor was added in 1813, two further Vice Chancellors in 1841 and two Lord Justices of Appeal in 1851 (Maitland 1910, 14). But he understood the reform path towards the Judicature Acts as a procedural improvement which did not substantially change the concept of equity in English law, and that partly because his own concept of equity was not very elaborated in the first place. For him, equity was “supplementary law, a sort of appendix added on to our code, or a sort of gloss written round our code”: “Equity was not a self-sufficient system, at every point it presupposed the existence of common law. Common law was a self-sufficient system.” (Maitland 1910, 18–19). Right at the beginning of his first lecture, he had been stumbling helplessly and producing, he conceded, “a poor thing to call a definition”, defining equity as “an existing body of rules administered by our courts of justice” (Maitland 1910, 1). Beyond that, he found no connecting legal substance in equity jurisdiction. The “jurisdictional and procedural bond” that bound the various “appendices” together in their institutional placement at the Court of Chancery had disappeared after 1875. What was left of equity after 1875 was, for Maitland, a “mere historical bond […] – and the strength of that bond is being diminished year by year”, as well as “a number of detached doctrines, one novel and fertile institution, namely the trust; and three novel and fertile remedies, namely the decree for specific performance, the injunction, and the judicial administration of estates” (Maitland 1910, 20, 22).
Maitland’s assessment of an increased pressure for reform stemming from an increase in cases in and importance of Chancery’s equity jurisdiction finds support in most modern scholarship. Thus, Joshua Getzler notes “mostly unhappy” consequences arising from “the absorption under Lord Eldon of almost the entire bankruptcy jurisdiction from the discredited bankruptcy commissioners” (Getzler 2004, 505). On a more positive note, Getzler points out:
Chancery procedures were becoming more important in the legal regulation of the modernizing commercial economy with its larger-case firms, elaborate credit structures, and increased incidence of insolvency. Chancery was important because (unlike the common law) it could handle multipartite suits, it could administer accounts and declare rights and duties in the fiduciary economy, and it could supervise remedies. Perhaps its trump card in attracting business was its relatively free admission of evidence including testimony from witness parties and extensive use of pretrial discovery and written bills. (Getzler 2004, 602)
The undoubted pressure for reform in the early 19th century could, however, also be perceived in much less neutral or conciliatory terms, as instanced by Jeremy Bentham’s vituperative opposition to Chancellor Lord Elden, whom he dubbed as “the mightiest and most mischievous of all the opponents of law reform” (Bentham 1843, X, 280). Elden’s tendency towards long consideration of cases and frequent rehearings stirred Bentham’s humour to calling him “Lord Endless” and “the Lord of Doubts”, but he described the Court of Chancery under Elden, now without the least irony, as “an instrument of fraud and extortion” (qtd Riley 2018, 45, 43). Bentham, of course, criticised the entire legal system as it was and favoured the development a “codified system of legislation [in which] would be placed all the necessary subject-matters formerly handled by courts of equity, such as trusts” (Riley 2018, 40). While Chris Riley maintains that “Bentham’s ideas on equity had little tangible impact on the reform of the court of chancery in the decades preceding its dissolution” (Riley 2018, 32), Bentham’s stand in equity is still typical of his time for its focus on procedure and utter negligence of any substantial conceptualization.
While the Chancery system appeared as antiquated, paternalistic and corrupt, the reform that was discussed and eventually put into place especially from the 1850s onwards turned out to be problematic, too, as Michael Lobban’s detailed explorations of the earlier law reforms before 1830 (Lobban 2003) and then of the process leading up to “fusion” in 1873/75 can vividly illustrate. Lobban writes:
The debate over fusion between 1852 and 1873 did not, however, turn out to be dominated by politicians with grand, coherent visions of what fusion entailed. Instead, it was carried out in largely procedural and technical terms, with lawyers generally eschewing questions of substance, preferring to concentrate on taking forward the procedural reforms of the first half of the century. The piecemeal and technical nature of their approach in the event ensured that the “fusion” effected in 1873 would turn out to be more problematic and complex in substantive terms than they had envisaged. (Lobban 2004a, 390)
The procedural and technical side of the reform, “speeding up litigation or reducing court costs” (Lobban 2004b, 599), would show some effect in the long run, even if such hopes were not fulfilled right away (Manchester 1980, 148–49). Lobban’s resumé on the substantive side sounds more dire:
Indeed, the “fusion” of 1873 did as much to show up the rival approaches of common law and equity as to resolve them. From the middle of the nineteenth century, reformers had been motivated by the idea that what divided law and equity was essentially their different machinery and procedures, rather than their principles. According to that vision, making a single court should have led to a natural fusion. But, as it turned out, men trained in the different branches retained different ideas about substantive questions. […] Along the way, subtle and complex questions were raised that had not hitherto been fully thought through and needed a breadth of vision that pragmatic lawyers all too often lacked. (Lobban 2004b, 598–599)
The overall assessment of these reforms remains open to dispute, even or because of such increasingly detailed assessments as Lobban’s. Thus, Joshua Getzler highlights the positive side of equity developments in the 19th century:
Chancery’s intrinsic jurisdiction to protect the vulnerable grew to embrace lunatics, children, women, sailors, expectant heirs, and other parties regarded as incapable of contracting rationally. Beyond these protected classes we may locate in similar vein Chancery’s protection of copyholders, charitable purposes, and indeed cestuis que trust and beneficiaries of fiduciary relationships generally. (Getzler 2004, 607)
Although Chancery’s approach was paternalistic, the specific issues it dealt with and the specific procedures and remedies it provided were highly topical and possibly more up to date than the common law machinery. Critiquing Lobban’s approach as biassed for “the pro-fusionist camp”, Getzler points out the downside of the reforms:
Indeed, it is arguable that the procedural fusion wrought by the Judicature Acts ruined this evolving juristic experiment by infiltrating equitable procedures including free evidence into the common law and thereby wrecking the classicism and objectivism of the writ system, as well as corrupting equity with common law doctrines that subverted its subjectivist emphasis on conscience and presumptive fraud. If some lawyers thought it imperative to combine law and equity for reasons of administrative convenience, others warned that this would destroy a useful partnership between different but complementary styles of law making and decision. (Getzler 2004, 608)
A complementary point is made by John Hamilton Baker from the side of the common law, concurrent reforms of which tend to be overlooked. Baker notes that the 1854 Common Law Procedure Act (17 & 18 Vict. c. 125) started the gradual abolishment of the jury, as it “enabled parties, by consent, to leave issues of fact to a judge”, because the Act ruled that “the ‘verdict’ of a judge was to have the same effect as the verdict of a jury” (Baker 2007, 92). This had important consequences in Baker’s view:
The abandonment of formality and of the civil jury has brought a retreat from clear principles into a myriad of particular instances. Equity, in the old sense of deciding every case on its own facts, has begun to replace and not merely to supplement the law. (Baker 2007, 93)
The “fusion” was, therefore, by no means a unidirectional process, and Getzler calls for “a study of the doctrinal interaction between the systems before and immediately after the Judicature Acts in order to judge what was gained and what was lost by that reform” (Getzler 2004, 108). Lobban, in his reply, concurs:
The history of the fusion of law and equity must be part of a broader modern history of the substantive law; and in such a history, 1875 may seem a date closer to the beginning than to the end of the process. (Lobban 2004c, 617)
Lobban continued the process from the perspective of the common law (Lobban 2007), but the focus in the following will be on the place of literature in these developments towards law reform and “fusion” in the nineteenth century.
3.5.2 Literary Engagements with Equity in the Nineteenth-Century
Next to the early modern period, the 19th century, and here especially the time from the reform years of the 1830s to the Judicature Acts in the mid-1870s, constitutes a second focus for discussions on equity and literature in British cultural history. While Shakespeare’s The Merchant of Venice and Measure for Measure have come to provide the main scholarly arenas to discuss equity and literature in the former era, it is undoubtedly Charles Dickens’ work, and his novel Bleak House in particular, that stands out in monumental size as the prime site of scholarly attention to equity and literature in the latter period. However, the historical parallelism only goes so far as such generalizing epistemological constructs will carry. Under scrutiny, differences quickly appear. Thus, in contrast to Shakespeare’s two plays which never mention the term at all, Bleak House explicitly and repeatedly refers to equity and beyond doubt presents an indictment of the malfunctions of Britain’s main site of equity jurisdiction at the time, the Court of Chancery. Clearly, none of the dozen or so references to equity (BH 2, 94, 135, 213, 258, 275, 443, 705, 842, 843) is in the least favourable; some have a humorous glint, most are condemnatory. Thus, right at the beginning, the “members of the High Court of Chancery” are seen as only “making a pretence of equity with serious faces, as players might” (BH 2). Dickens’ negative imagery seems to get ever more lively as the novel develops, comparing equity proceedings with “an infernal country-dance of costs and fees and nonsense and corruption as was never dreamed of in the wildest visions of a witch’s Sabbath”:
Equity sends questions to law, law sends questions back to equity; law finds it can’t do this, equity finds it can’t do that; neither can so much as say it can’t do anything, without this solicitor instructing and this counsel appearing for A, and that solicitor instructing and that counsel appearing for B; and so on through the whole alphabet, like the history of the apple pie. And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. (BH 94)
Soon equity and law, together, are reduced to dirt accumulating in the street, forming an impediment to “the general crowd, in whose way the forensic wisdom of ages has interposed a million of obstacles to the transaction of the commonest business of life; diving through law and equity, and through that kindred mystery, the street mud, which is made of nobody knows what and collects about us nobody knows whence or how— we only knowing in general that when there is too much of it we find it necessary to shovel it away” (BH 135).
Kieran Dolin offers one of the most comprehensive and influential commentaries on the novel’s critique of the law in his chapter “Reformist critique in the mid-Victorian ‘legal novel’ – Bleak House” (Dolin 1999, 71–96). In sum, he argues:
The sense of contradiction expressed in the phrase, “the mighty mystery of Iniquity and Equity,” is emplotted in Bleak House, which presents the stories of the institution’s victims as evidence of the need for reform, but which also recuperates part of the tradition of Equity as an alternative to Chancery. That alternative is best embodied in Esther Summerson. Esther’s recovery of family represents […] a type of world-building which is set against the destructive and entropic tendencies of Chancery. (Dolin 1999, 71)
Dolin points out Dickens’ “promotion of an ideology of the family in the context of a general critique of society”, and he shows Dickens “to insist on the necessity of change by using the temporal properties of narrative” (Dolin 1999, 95). The issue of equity is linked to the wider national agenda, as Dolin argues:
As an answer to the “Condition-of-England” question, Bleak House portrays English society “in Chancery”, dominated by and characterized by the dead hand of the court. Against this, Dickens sets the “progress” of Esther Summerson and, through her, the reclamation of the ideals of equity. (Dolin 1999, 95)
Calling Bleak House a “national allegory” in one of his later revisitings of the novel, Dolin again emphasizes:
The issues and problems raised by Jarndyce and Jarndyce are not peculiar to that family or to Chancery but are symptomatic of what Dickens sees as the condition of England. […] Through Jarndyce and Jarndyce, Dickens pioneered the legal trial as an allegory of modern society[.] (Dolin 2007, 138)
Engaging with the effectiveness of the novel’s criticism of legal practice, Richard Posner sees it as “a powerful, if belated, satire on a seriously flawed, though already reforming, legal institution”, and goes on to observe:
Viewed merely as description and critique of the Court of Chancery, Bleak House is a century-and-a-half-old piece of fictionalized journalism – whose author, moreover, for all his keen sense of injustice, was not a practical reformer. Dickens […] is warning the reader against falling into the clutches of the court, rather than trying to make those clutches less fell. (Posner 32009, 190)
Still, Bleak House clearly is a novel which narratively enacts a critique of the Court of Chancery at the time, however effective in its reformist agenda, but it is also much more. Dolin’s allegorical readings with reference to the “condition of England” tradition already point in that direction. Simon Petch shows how Jan-Melissa Schramm’s (2000) analysis of the novel “gets behind the intricacies of Equity procedure and Equity principles; it suggests that the challenge now facing the critic of Bleak House is to get beyond Equity” (Petch 2007, 371) and enlists Clare Pettitt’s Patent Inventions (2004) as a further example of such a wider contextualisation of the law in Bleak House. In fact, Pettitt, in another essay further writes to this point:
I would […] challenge any simple reading of fiction as “supplementary” or “rivalrous” to the law – suggesting instead that much Victorian fiction seeks to resituate the law in a wider cultural debate. […] Fiction bears a far more complex relation to the law, and indeed to other public discourses, than has yet been fully investigated[.] (Pettitt 2005, 87)
Maria Ioannou, in a recent article, has another challenge to what begin to appear as conventional readings of Bleak House in Schramm’s and Petch’s accounts. While Ioannou concedes that the novel “takes an, as it were, bleak view of attempts to improve the law”, she then goes on to identiify “important instances of a positive depiction of legal rules and legality” (Ioannou 2020, 139). Thus, Ioannou argues that Jarndyce’s charitable work acts within a smoothly functioning legal framework:
The legal system may produce monstrous cases like Jarndyce and Jarndyce, or vampiric humans like Mr. Vholes, but it can also produce structures, rules and mechanisms by which a desire to do good is transformed to actual, real, benevolence. (Ioannou 2020, 140)
Ioannou further points out that
the legal system appears at its most beneficent in Bleak House when it seeks to aid women and to outdo the effect of male-created rules […]. The novel considers the importance of the female point of view and examines the stories of women within an overall inquiry into the nature of law. This inquiry refers to, but at the same time goes beyond, questions of common law as opposed to equity; it refers to, but goes beyond, the Court of Chancery. (Ioannou 2020, 146)
Or does it? one is tempted to rejoin, as what is described to go “beyond Chancery” here comes close to a proven understanding of what equity is about.
The observation that Bleak House “goes beyond” most unilinear arguments or interpretations is, however, brought home by the dazzling multiplicity of themes, approaches and references scholarship has traced in it. Kate Flint, in her dense survey, detects “an irresistible lure for Victorian scholars” in this novel, quoting Simon Joyce who called it “the Victorianists’ white whale, the one text that we are all destined to take a shot at” (Flint 2018, 221; Joyce 2002, 130). The consequence is that, at least in the purvey of the copious output of scholarship on Bleak House, the themes of equity and its malfunctioning administration in the Court of Chancery appear only as one kind of shard in the novel’s kaleidoscopic ensemble, thus explaining Flint’s all too minimalist referencing of it (Flint 2018, 223; the word “equity” does not appear in Flint’s chapter at all). This may also be an encouragement to keeping the search light set on equity in this novel’s voluminous pages.
A few further novels by Charles Dickens have received scholarly attention with regard to questions of equity. Thus, equity somewhat surprisingly does appear as a reference in the Oxford Handbook of Charles Dickens; not in Kate Flint’s chapter on Bleak House, as seen above, but in Jon Michael Varese’s chapter on Nicholas Nickleby, which is subtitled “Equity vs Law”. The term “equity” is never used in the entire novel, which, however, does have the Lord Chancellor appear as a frequent agent. Varese highlights the equity theme because he pronounces Nicholas Nickleby to be “a novel about contracts” which centres on the question, “does the equity – or fairness – aspect of a contract have the ability to compete with or even supersede the strict letter of the law?” (Varese 2018, 119). Reading the novel in the context of Dickens’ own, diverse experiences with and attitudes towards contracts, here mainly with his publishers, Varese concludes that “contracts, in Dickens’s estimation, had become pliable documents. […] Like the manuscripts he was writing, contracts could be edited, altered, and revised” (Varese 2018, 129). As against that, “‘bad’ kinds of contracts, which favour law over equity, exactitude over fairness, are bound to be broken, and broken justifiably” (Varese 2018, 123). Thus, Nicholas Nickleby, in this reading, is concerned with equity in so far as it is concerned with contracts, and these had evolved into an important domain of equity jurisdiction. Contract law had already been in the background to the discussions on the validity of the contract between Shylock and Antonio in Shakespeare’s Merchant of Venice and was undergoing important developments from the late 18th century. Situated somewhat uneasily between common law and equity (the former providing for cases of breach of contract and the losses incurred thereby, the latter for enforcing performance of a contract in the future) to this day (see Baker 2007, 317), the discussions on contract law were particularly acute during the 19th century with battle lines drawn between common law and equity preserves in it (see e.g. Horwitz 1974).
In pursuing the themes of atonement and self-sacrifice, Jan-Melissa Schramm also discusses Bleak House, but then moves on to Dickens’ later novel Great Expectations (1860/61), on which she comments: “Dickens performs here the defeat of the demands of the law and its displacement by the realms of equity, mercy, compassion” (Schramm 2012, 229). In this monograph, Schramm’s horizon widens to numerous further Victorian novels where aspects of equity can be identified, notably in George Eliot’s Felix Holt, where she focuses on the figure of Esther: “Within the moral framework of the novel, Esther stands for the supplementary work of equity” (Schramm 2012, 194).
Further Victorian authors come into the purview of discussion of law and literature, notably Anthony Trollope. In his reading of Orley Farm (1861/62), Geoffrey M. Harvey focuses on the juxtaposition of law and equity, the latter epitomized in Lady Mason’s “passion for equity and her cheating of the law to obtain it” (Harvey 1975, 79). In his analysis of The Eustace Diamonds and John Caldigate, Frederik van Dam finds that “Trollope’s novels show that equity cannot be grounded in natural law or positive law because both are intrinsically tied to violence” (van Dam 2012, 807). Van Dam’s consideration of Trollope’s use of free indirect discourse (van Dam 2012, 809) is one of the rarer instances where literary form is made the focus such explorations. Richard Posner also has a general comment on the issue of form in connection with equity when he observes, in his juxtaposition of Fyodor Dostoevsky’s novels The Brothers Karamazov (and with it in the same category as Dickens’ Pickwick Papers) and Crime and Punishment (together with Franz Kafka’s The Trial and Dickens’ Bleak House):
The first depicts adversary procedure, the second inquisitorial procedure. The inquisitorial method of Continental and chancery proceedings lends itself to novels of protraction, constraint, and obsession. (Posner 32009, 224)
Posner here identifies an isomorphism between the legal system which a novel treats of and its narrative structure, here the cunctative, circumstantial and deliberative decision-making process for which the Court of Chancery and Lord Chancellor Eldon as the epitome of this tendency had been notorious at the time.
However, the overall number of 19th century literary texts where equity has been given interpretative weight appears small in consideration of the vast amount of literature produced at the time, and that through all genres, not least in the burgeoning theatrical world, but also in poetry. Simon Petch notes the gap in the study of the latter: “Sadly, the legal resonances of Victorian poetry remain unheard, unacknowledged, and unappreciated.” (Petch 2007, 375). Petch had previously made some steps to fill this lacuna by including Robert Browning’s The Ring and the Book and Alfred Lord Tennyson’s Idylls of the King in his earlier survey of equity in Victorian literature (Petch 1997), to which Kieran Dolin’s more recent discussion of Browning’s 1875 verse novel Red-Cotton Night-Cap Country (Dolin 2018, 169–70) could be added. The overall impression, however, remains that scholarship has, so far, only shone a small search light onto a vast field, for which the small number and eclectic choice of literary examples in Petch’s own and otherwise magisterial survey of law, equity and conscience in Victorian times is no less emblematic.
Similarly, despite the vast amount of scholarship that has gone into gender studies on 19th century literature and where legal studies have brought interesting new insight, references to equity remain few and far between (see for the example of Bleak House, Flint 2018, 221 fn.7). Here, Gary Watt has some useful insight in his subchapter “The Stereotype of Female Equity” (Watt 2009, 179–183). Watt takes his departure from Simon Petch’s analysis who had argued, citing as examples Portia in Shakespeare’s Merchant of Venice, Esther Summerson in Dickens’ Bleak House and Pompilia in Browning’s The Ring and the Book:
[A] response to women’s lack of sovereignty can be seen in writing by men which accords women a degree of self-sovereignty by constructing them as figures of equity. Throughout Victorian literature, as written by men, the relationship of women to legal institutions is analogous to the supplemental relationship of equity to the common law. As equity mitigated the rigour of the common laws, in the economies of justice that obtain in Victorian literature, figures of equity (of fairness and conscience) are both female and feminine. (Petch 1999, 413)
Watt’s first caveat is that “the chancery branch in the first half of the 19th century was by no means exclusively male-oriented in its practice” (Watt 2009, 179). He concedes and shows that the “stereotype of equity as female has a long history in English literature written by men”, but then submits:
The stereotype depends on sweeping general assumptions about the natures of “equity” and “female”. It is objectionable if the female stereotype is inherently unflattering ([…] Bentham referred to chancery equity as “that capricious and incomprehensible mistress of our fortunes”); and even if equity is always virtuous, it does not follow that to stereotype equity as female is necessarily a good thing. (Watt 2009, 181; quote: Bentham 1938, I, 228)
Although Esther Summerson is, for Watt, the “most fully realised and finely nuanced personification of equity in English literature”, this does not accrue from the fact that “she is female”: “After all, she is a man’s idea of a woman and could even be said to be Dickens in disguise.” (Watt 2009, 182).
In conclusion, the literary engagement with questions of equity in the 19th century as explored in literary scholarship so far already gives substantial insight in that aspect of the law reform and the movement towards the “fusion” of equity and common law which Lobban above had referred to as that “broader modern history of the substantive law” (Lobban 2004c, 617) which still has to be researched to buttress and flesh out the existing findings in procedural law reform. The potential for further findings in this direction seems substantial.
3.6 Equity and British Literature in the Twentieth- and Twenty-first Centuries
John Hamilton Baker’s 20-page chapter on “The Court of Chancery and Equity”, from Anglo-Saxon times to the present, is characteristic of historical treatments of equity jurisdiction in Britain, as it has only a single, final paragraph for the twentieth and twenty-first centuries. Here, Baker notes: “The abolition of the historical, procedural distinction gave new emphasis to this broad view of equity”, in that it gives special attention “to particular circumstances and hard cases” (Baker 2007, 115). Baker points out that “in fact the Chancery judges are the least likely to administer equity in the broader sense”, equity consideration now resting more with the Queen’s Bench judges, who have “inherited it from the jury”. Baker concludes:
Paradoxically, as the equity of the Chancery has hardened into law, so the law has been dissolving into something like abstract equity, with a consequent loss of clarity and certainty. Today, therefore, the Chancery Division is not a court of conscience; and “it is the common lawyers who now do the equity”. (Baker 2007, 115 and fn. 93)
“Hanbury & Martin”, the standard handbook of Modern Equity, as its title has it, is similarly brief in dealing with developments of equity after the Judicature Acts. They point out that, although the 1873 Act had confirmed the priority of equity – “the rules of equity shall prevail” (36 & 37 Vict. c. 66 s. 25 subs. 11) – “the effect of the Act is a procedural only” (Hanbury and Martin 202015, 17). While they note, in a final paragraph, the changes to the status of the Lord Chancellor and the establishment of the Supreme Court in the Constitutional Reform Act of 2005, their resumé is open-ended:
Whether developments since the Judicature Acts have had the effect of fusing not only the jurisdictions but law and equity themselves is a disputed question[.] (Hanbury & Martin 202015, 18)
The handbook then moves on to its main business of explaining “modern equity” today which is centred on the concept of the trust in its various judicial natures, forms and relevances. The contrastive or supplementary perspectives of these two standard works on equity with their different emphases exemplify the trajectory of the discussions on equity to the present day. Baker’s historical perspective has much to explore and explain in terms of procedural and substantive struggles in the formation of equity jurisdiction in Britain from the middle ages to the late 19th century. After that, the story seems to peter out uneventfully. Conversely, Hanbury & Martin have only a short glimpse of this earlier history and its ideological discussions, but then give the impression that the pre-20th century prelude is of little importance to the understanding of our modern, rather technical equity jurisdiction on trusts and some related legal fields. Keeton and Sheridan, to bring in a third standard modern work on equity, take a middle position when they state in the opening paragraph of their book : “Nearly a century after the unification of judicature, it [equity] is still of practical significance (though by no means as important as it once was)” (Keeton & Sheridan 1969, 1). If the 20th century still had an ongoing discussion about the principle of equity as a wider legal, cultural or social concept, it would not have used the term so much any more: While equity had become a household term from early modern times onwards “conveying general approbation” (Sokol 2007, 100), “much like the word ‘cool’ is used in our time” (Fortier 2015, 15), it seems to have lost its wide currency even in this vague and unmarked usage in the course of the nineteenth and early 20th centuries, possibly in connection with the rise of its newly specific application to special legal concepts such as the trust and, later, according to the Oxford English Dictionary only from the early 20th century onwards, as a legal-economic term referring to the value of a company or a share therein.
This situation, typical of much of the 20th century when equity was a term with very specific usages for specialists in law and economics, changed significantly from the 2000s onwards. Since the new millennium, the use of equity has spread dramatically in currency as a signpost for pressing societal reform with regard to a more inclusive attitude in the field of education in general and in the areas of gender, race, class, disabilities and diversity in particular, with strong interest shown by linguists in exploring such phenomena as they are reflected in language and language policies. In this expanding field, equity appears to replace or supplement the wide-spread concept of equality as known from the late 18th century revolutionary slogans. In a logic sequence, equity can also be understood as a precondition or pathway to equality, but the two concepts have certainly become differentiated, as Mark Fortier has already done from a historical perspective, pointing out an ambiguity and even a potential opposition between equality and equity (Fortier 2005, 137). This negative potential of equity has evaporated in its recent usage, where it emerges as the more considerate approach to the overall aim of social justice. Thus, Ellen Gutoskey, to give a typical example, defines: “equality is about dividing resources in matching amounts, and equity focuses more on dividing resources proportionally to achieve a fair outcome for those involved” (Gutoskey 2020, n.p.), and quotes a sample illustration of many (see figure 1 below).
The enormous scope of these current and still expanding equity discussions is already suggested by the variety of topics it addresses; to give some examples: equity in dual-language bilingual education (Morita‐Mullaney et al. 2020); disabilities and equity (Cheatham and Sumin Lim 2020); racial equity (Coleman 2016); menstrual equity (Gold and Lewis 2020); gender equity (Tijerina Revilla and Smooth 2014); or equity in theatre (Burton and Newman 2016).
Against the background of this rough sketch of equity as remaining highly specialized and restricted in its usage in most legal and some connected economic contexts, but gaining enormous cultural purchase since the 2000s, the responsiveness in British 20th and 21st century literature has been muted and, to say the least, unmarked in literary scholarship. Rex Ferguson, writing about modernist developments in the early 20th century, duly notes that literature, at least in its major genre of the novel, took the avant-garde at a time when law in many ways remained stuck in Victorian precepts: “while law, and the activity of a trial, both continue to operate like a Victorian novel, the novel itself wanders off into strange, experimental territory” (Ferguson 2018, 189–190). At the same time, engagements with law in British literature in general have remained numerous and popular: There is the meteoric rise of detective fiction from its origins in the 19th century to its first high point in Arthur Conan Doyle’s Sherlock Holmes stories in the early 20th century, with exciting new developments and unabated popularity to the present day (see e.g. Pittard 2011; Murch 1968), as popular forms of detective and crime fiction are filling vast shelves in the bookstores; and there are many more engagements with the law in literature, from the various facettes of courtroom scenes in theatre (Coutroom Drama) to serious engagements with legal issues such as Ian McEwan’s The Children Act (2014). However, equity does not appear as an aspect or issue in these texts, either as a topic explicitly addressed by literary authors or as an interpretative or analytical approach in literary scholarship dealing with British literature of the 20th and 21st centuries. Whether this observation of the development since the early 20th century, of the use of equity as a legal concept, of literary genres, of engagements with law in literature and the absence of engagements with equity and literature in scholarship already reflects a sustained historical development that in itself would need further investigation, or whether these observations occur because not enough research effort has gone into this field is difficult to assess at this stage. Further probing seems to be called for.
On another level it has to be noted, however, that a browsing of bibliographic databases like the MLA bibliography for the keyword “equity” will show that much of the scholarship on equity in British literature, and there particularly in early modern times, has happened since the 2000s. A good example is The Oxford Handbook of English Law and Literature, 1500–1700 (Hutson 2017), which gives an excellent survey of the state of research in the field and does consider issues of equity in many ways, but also marks the historical emphasis on the early modern period by its periodization and the lack of a corresponding volume for the time from 1700 to the present. For the moment, scholarly interest in equity and literature, which has to be seen against the contemporary surge in a wider cultural interest in equity as a social, political and educational context, appears channelled within this historical perspective. Whether and how this could spill over into a wider discussion of the use of equity in literature of later periods remains to be seen.
4. Equity and Literature in Other Common Law Traditions
The explicit and institutional format of equity in the English legal tradition was also transplanted to colonies and settlements through Britain’s expanding global influence, first through various trading organisations such as the East India Company (cf. Stagl 2012), then in the expanding British Empire. Later, English legal precepts were often influential in the formation of new, postcolonial nation states. The most important of these (legal) “plantations” was, quite obviously, the United States of America. As in the following French Revolution, the conceptualization of equality had, next to liberty, a central, mythopoeic place in the foundational narratives and documents of the newly emerging nation. The phrase “We hold these truths to be self-evident, that all men are created equal” at the beginning of the Declaration of Independence of 1776 has remained one of its most frequently quoted and formative elements to this day. The ideal of equality had already been propounded by European philosophers who strongly influenced the “Founding Fathers” of the United States when drafting the Constitution. Next to John Locke (see Hunt 2016), Charles de Secondat, Baron de La Brède et de Montesquieu, was one of these principal cue givers. James Madison, member of the Continental Congress and later fourth President of the USA, called him “the oracle who is always consulted” (Madison 1788). Montesquieu certainly focused on equality in his seminal Esprit des Lois, where he states in his chapter III on positive law of Book V: “L’amour de la république, dans une démocratie, est celui de la démocratie; l’amour de la démocratie est celui de l’égalité.” (Montesquieu 1995, 45). First published in 1748 and, in Thomas Nugent’s translation, in English in 1750, Montesquieu’s influential work also had frequent recourse to concepts of equity, as in this historical reflection:
After the nations which subverted the Roman empire had abused their very conquests, the spirit of liberty called them back to that of equity. They exercised the most barbarous laws with moderation (Montesquieu 1777, II, 212)
Montesquieu further uses equity as a concept of remuneration in his rebuttal of slavery in Book XV:
No labour is so heavy but it may be brought to a level with the workman’s strength, when regulated by equity and not by avarice. (Montesquieu 1777, I, 323)
Equity is not mentioned as a term in the Declaration of Independence, but addressed in the Constitution, which stipulates that the judicial power of the United States, as given to the “supreme Court” and “inferior Courts” “shall extend to all Cases, in Law and Equity” (Art. III. Sect. 2). While equity thus never had a separate institution in the USA like the Court of Chancery in England, it still had equitable remedies at its disposal. And unlike in England, American federal courts would use equity jurisdiction in any kind of litigation or case. The Supreme Court judge Joseph Story has the Aristotelian understanding of equity in his Commentaries:
Every system of laws must necessarily be defective and cases must occur to which the antecedent rules cannot be applied without injustice or to which they cannot be applied at all. (Story 1836, 8)
Different situations might apply in district courts in the various federal states. Originally, several colonies (except Massachusetts and, nearly, Pennsylvania) had had separate equity courts, even if, as Lawrence Friedman points out, “equity was not always totally separated” (Friedman 2019, 22). These equity courts had become very unpopular by the 18th century, because they were associated with central power and colonial rule. They raised the same complaints about costs of protracted procedures, Friedman quoting a journal article complaining of thirty-year delays in equity suits in 1752, “a century before Dickens’s Bleak House” (Friedman 2019, 23). Nevertheless, it was the federal states that were the first to adopt a unified jurisdiction, gradually bringing equity and law into line of a single procedure. This is true for “most of the states”, although some were lingering behind, with New Jersey only abolishing chancery courts in 1947 and Delaware (https://courts.delaware.gov/chancery/) retaining its court of chancery to the present day (Friedman 2019, xxvi–xxvii). It was only in 1938 that the Supreme Court itself adopted the Federal Rules of Civil Procedure, thus combining law and equity jurisdiction into a single kind, now called “civil action”. “Rule 2” of Civil Procedure now states bluntly: “There is one form of action – the civil action.” (Rules of Civil Procedure 1938/2019, 1). From there onwards, the American judicial system shows an even stronger integration of law and equity than is the case in English law today.
From a historical perspective, the main arena of equity discussion in the United States does not primarily lie with the opposition between law and equity, but had its main fault lines in the development of equality as one of its foundational myths. Amanda Emerson takes David Ramsay’s The History of the American Revolution (1789) as an influential instance, “how early American historiography mythicized equality, effectively setting it in an originary time in order, then, to infer its influence over all subsequent time” (Emerson 2005, 87). Emerson goes on to explore how this myth of equality was interpreted in early US history and observes:
On the one hand, writers in the 1770s and 1780s proffer a “New World” where equality appears in images of a general equivalence or sameness in the social conditions of its white citizens. On the other hand, writers in the late 1780s and 1790s increasingly emphasize a condition of equality as equity, the admittedly uneven though impartial distribution of social standing. (Emerson 2005, 79)
She argues that equity was “a concept more amenable to the liberalism that characterizes much 19th century thinking” (Emerson 2005, 83). For her, the “equitable […] does not displace equality itself as an influential myth. It merely stands in the place of equivalence, another entailment of equality” (Emerson 2005, 93). This shift meant, again in Emerson’s reading, that “America could be unified without homogeneity”, but it also “meant that differences coded as ‘natural’, and therefore just and impartial, could be used to support correspondingly uneven distributions in legal, social, and economic ‘goods’” (Emerson 2005, 99). In sum, the shift to equity has a decidedly negative flipside for Emerson:
The negative logic that invokes America as equivalent by abjecting all that is unequal gradually gives way to a negative logic that produces America as equitable by organizing the tension of internal contradictions. Nowhere do the two modes of negative affiliation work together more powerfully than in the rhetorical compromises that, for a time, reconciled equality with slavery. (Emerson 2005, 94).
Equity thus appears as highly ambiguous as a social and political concept in the early years of US history, highlighting the potential ambivalence in the general concept of equity which usually stands on the side of clemency, mercy and indulgence, but can also be rallied to purposes of severity and even oppression. Equity remained present as a specific legal term and practice in the juridical systems of the American federal courts and the individual states’ judiciaries well into the 20th century, when law and equity merged into civil action and the meaning of “equity” began to move into the field of economics, designating “the ordinary shares of a limited company”, with 1906 given as the first reference for this meaning and shown as “originally US” in the OED (5c).
Where American literature as such is concerned, engagements with equity have not received much scholarly comment so far. Erica Burleigh analyses the equality-debate in early American law and culture in her readings of Charles Brockden Brown’s novels Clara Howard (1801) and Jane Talbot (1801). Following up “the novel’s interest in alternatives to contractual models of relationship, one of which is the concept of equity” (Burleigh 2011, 748), she concludes:
Brown radicalized contractual inequality by stressing the fact of force and making that force expansive enough to encompass not only physical, but also rhetorical or persuasive, compulsion. […] Equity operates in situations where money can’t compensate; Brown’s point was that virtually all social relations are non-compensatory in this sense. […] If we cannot depend on considerations to make a contract balanced, then we must turn away from consideration and start thinking in terms of equity, start thinking in terms of fairness rather than presumed equality. (Burleigh 2011, 779)
What is interesting in Burleigh’s reading of Brown’s novels is her focus on areas of socio-legal relationships which may not only be in need to equitable complementation in case of conflict because the (common) law does not allow for the right remedies which equitable justice might; but that there are areas which are only and exclusively accessible by and amenable to equitable jurisdictions because of the very nature of their setup.
Herman Melville (1819–1891) has provided an “iconic law and literature text” (Crane 2013, 893) (and a bone of interpretative contention for many other approaches besides) in his story “Billy Budd, Sailor” written from 1886–91 and first published posthumously in 1924. The text has received numerous readings from a law and literature perspective, with Richard Weisberg’s perhaps as one of the most widely discussed variants (Weisberg 1984, 133–176). Considerations of the role or applicability of equity are, however, rare in the long series of scholarly writings on this story. One of these rarer readings including a perspective on equity is put forward by Gregg Crane, who discusses the role of intuition in judgements which have to face potentially indissoluble dilemmas. For this, he sets the story within a framework of equitable consideration and marks the literary field as more amenable to this than the legal:
Judges may occasionally acknowledge that their decisions […] turn on a non-analytic hunch about the equities involved. However, in the judicial context, playing a hunch sounds pretty risky introducing chance, personal feeling, and mystery into a process that many litigants (and average citizens) might prefer to resemble the analytic purity and predictability of a mathematical calculation or scientific taxonomy. Consequently, it is not surprising that the intuitional aspect of judicial decisions largely remains implicit. Literary depictions, by contrast, often do not hesitate to delve into this vague yet potent part of the judgment process. (Crane 2013, 893)
“Bartleby the Scrivener” (1853), another of Melville’s stories, is less obviously concerned with questions of the law. However, Irving Adler points out in his astute reading of the story that equity jurisdiction, here in the form of the Court of Chancery, can be taken as a key to the understanding of this text. The State of New York continuously had a provincial Court of Chancery from 1683, which continued after Independence and was abolished only in 1849 (Historical Society of the New York Courts n.d., n.p.; for examples see also Thomas 1987, 32–33, 172–73). The abolishment of the court appears in the background of “Bartleby”, in that the reason for the employment of Bartleby in the service of the story’s lawyer-narrator is the fact that he becomes a Master in Chancery, through which his workload “considerably increased” and “There was great work for scriveners” (Melville 1997, 10). The narrator reveals his attitude to his duties in Chancery and his views on its abolition in a kind of dramatic monologue at the outset of the story:
It was not a very arduous office, but very pleasantly remunerative. […] I consider the sudden and violent abrogation of the office of Master in Chancery, by the new Constitution, as a – premature act; inasmuch as I had counted upon a life-lease of the profits, whereas I only receive those of a few short years. But this is by the way. (Melville 1997, 4)
The remarks are not, of course, “by the way” in the least, as the lawyer saw his office in Chancery exclusively as a source of additional and easy income. Neither are they for Adler, who centres his analysis around them, concluding:
The abolition of the Courts of Equity, with their functions turned over to the law courts, symbolized for Melville the departure of the country from its original national purpose. It took place at a time when, with the growth of commerce and industry, the country was coming increasingly under the domination of rich men […]. Under these circumstances, without a separate court of equity true to its original purpose, there was the likelihood that in a conflict of natural rights versus property rights, natural rights would once again be the loser. […] the central theme of Bartleby is Natural Rights vs. Property Rights sanctified by law. (Adler 1987/88, 469)
In a striking parallel to 19th century developments in England, equity jurisdiction seems to be abolished or reduced in a time when its need is most urgently felt. Here, literature seemed to step in.
There is some further comment on equity and literature in other American writers, but this is only occasional and far between. James Guthrie differentiates equity in his book on Emily Dickinson and law (Guthrie 2015) and devotes chapter 2 “Not here nor there. Equity” to it. Marvin Singleton reads the characters in William Faulkner’s novel Absalom, Absalom! (1936) as representatives of contrastive approaches under common law (Sutpen) versus equity (Rosa) (Singleton 1967, 354–55, 364–68). And, very recently, Jose-Luis Moctezuma has even written a poem entitled “Private Equity” (Moctezuma 2020), introducing the new, economic sense of equity into literature.
In the American context, the rise of the so-called Law and Literature-Movement from the late 1970s onwards could, as the renewed interest in equity in early modern literary history in Britain, be understood as a re-consideration of equity aspects in literature itself. Unlike the British version, equity as a concept plays no major role in what has variously been subsumed under the catchphrase of “rehumanizing the law” (see for a more recent attempt, Gordon 2010; for a survey, Stierstorfer 2018). The momentum for the law’s recourse to literature in the American context at the time is usually described as a reaction to the rise of “literature and economics”, as sketched out by Owen Fiss:
This […] is most dramatically manifest in the effort of the practitioners of Law and Economics to introduce into legal scholarship (and even into judicial opinions) the value-less and formal language of mathematics, and to place a premium upon purely behavioral or empirical studies, which generally presuppose the existence of some measurable goal and a form of activity that is fully observable and which, like rocks rolling down a hill, remains undisturbed by observation. (Fiss 1989, vi)
Fiss’ call for value-orientation and substantive considerations beyond mere form strongly echoes the dichotomy of the rigid focus on the letter of the law as against equity’s more contextualizing and substantive approach in the administration of justice. But equity has not received the further consideration and research within the American law and literature movement which these conceptual parallels might have suggested.
A look at scholarship on the various other nations and cultures, many of them postcolonial, where equity jurisdiction has been an inheritance from the English legal system, quickly shows that equity and literature have not received much explicit treatment or attention. Occasional references are much rarer than might be expected. Thus, Janice Gray notes an important legal equity component in her assessment of the landmark Mabo case in Australia, which established aboriginal land rights as preceding colonization and countered the terra nullius myth (Gray 1997, 57); but no reflections on the treatment of equity in subsequent Australian literature have followed, although the impact of the case in literature has been duly noted (e.g. Dolin 2014). In Africa, Edna Aizenberg brings equity considerations to Nigerian Ben Okri’s novel The Famished Road (Aizenberg 1995) and Jamie Scott summarizes the impact of religion and literature in a postcolonial context by taking in equity as a reference point (Scott 1996), but these studies are far between and eclectic. Considering that there are a number of further nations with more or less explicit equity jurisdiction in the English tradition, including Canada, India, Ireland, New Zealand, South Africa, which apparently remain widely unnoted in this perspective, the conclusion can only be this: Here is a vast field of research that, in consideration of the impressive results that studies in equity and literature in British literary and cultural history have yielded so far, is well worth further prospecting. It thus remains to be seen whether this research would unearth more texts that explicitly address equity as a legal concept or whether more literary texts can be identified that do not expressly refer to equity but can profitably be read through a conceptual framework of equity (such as Shakespeare’s Merchant of Venice).
5. Conclusion: Equity and Literature Beyond the Common Law Tradition
Equity as a legal principle is, of course, not limited to its specific formation in common law traditions. Thus, Montesquieu’s Esprit des lois, so influential in establishing American legal culture (see 4 above), did not only provide the blueprint for the theory of the separation of powers, but repeatedly refers to equity within the concept of the codified idea of the law (Montesquieu 1777, vol. I, 51, 323, 330, 426, vol. II, 212, 231, 253, 381). William Warwick Buckland’s Equity in Roman Law, published in 1911, drew attention to its presence in Roman (codified) law. Legal scholarship has further explored equity’s reach and application in other systems of codified law, such as the comparative attempts of Razi (1963), Yntema (1966/67) or Debruche (2009). Equity is referred to three times in the French Code civil (Art. 565, 1135, 1845), and the words billig or unbillig and their respective nouns appear no less than 81 times in the German Bürgerliches Gesetzbuch. Thus, the presence of equity in codified legal systems is evident and duly noted in comparative legal scholarship, though apparently not a major issue there, as suggested by the very short shrift it gets in the Oxford Handbook of Comparative Law (Reimann and Zimmermann 2006, 1059–60). Literature written against a civil law background or engaging with civil law issues remains, however, widely unexplored, despite occasional and interesting work such as Wolfgang Mauser’s 2007 monograph Billigkeit: Literatur und Sozialethik in der deutschen Aufklärung.
Equity appears today as a pervasive legal principle that is not, however, widely discussed as problematic in legal scholarship. Within the discipline, the main interest is on its very specific and formalized legal applications, especially to trusts and in the economic context of private and public equity of companies. In the wider cultural context, a remarkable revival of the use of the term can be noted since the 2000s, where it is used as a catchphrase for the efforts towards more inclusive societies respecting and enabling those social groups suffering from various disadvantages or inequalities. Within literary scholarship, finally, engagements with equity can be observed mainly from within common law traditions, with a focus in early modern and, to some extent, 19th century British literature. As the example of Shakespeare’s drama has shown (see 3.3.4 above), some literary texts explicitly refer to equity, while others may still discuss important aspects of equity without such direct reference and hence yield interesting readings from a law and equity perspective. This latter insight can suggest that probing literary texts for their legal or equitable premises may be a viable and productive way of interpretation which can lead to innovative readings of canonical and not-so-canonical works. This point is argued very well by Mark Fortier when he advocates “an understanding of equity as more than just a legal idea or an idea applicable only in legal situations”, as he sets out to “demonstrate how legal notions can help elucidate works without specifically legal content” (Fortier 2019, 5). For the legal scholar, such readings can open new ways to understand and discuss equity as a legal principle and concept and they may help to widen again the legal vista from its now predominantly technical and economic focus to a wider consideration in tune with the cultural discourse on equity which has grown so vibrant again in recent years. The collaboration between legal and literary approaches will remain helpful here, since, if Gary Watt is right, “equity is actually the poetry of law” (Watt 2009, 146).
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Klaus Stierstorfer stierstorfer[at]uni-muenster[dot]de
How to Cite This Entry
Klaus Stierstorfer (2022): Equity, in: Thomas Gutmann, Eberhard Ortland, Klaus Stierstorfer, eds., Encyclopedia of Law and Literature (last edited 21 October 2021),
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