Equity › Rejoinders
Sir Thomas Erskine Holland (1835 – 1926) was a British jurist. His prolific scholarly work, including an often-cited treatise in legal philosophy (Elements of Jurisprudence, 1880), his co-founding and editorship of Law Quarterly Review and his service as a university judge earned him the titles of a King's Counsel and a Fellow of the British Academy, as well as a knighthood in 1917.
Holland, Thomas Erskine. 1880. The Elements of Jurisprudence. Clarendon Press: Oxford.
[32] Natural law, or natural equity, has been often called in to justify a departure from the strict rules of positive law. With the changing ideas of society cases of course often occurred when the law of the State was found to be in opposition to the views of equity entertained by the people or by leading minds among them. The opposition would be said in modern language to be between law and morality. But law and morality in early times were not conceived of as distinct. The contrast was therefore treated as existing between a higher and a lower kind of law, the written law which may easily be superseded, and the unwritten but immutable law which is in accordance with Nature.
And this way of talking continues to be practised to the present day. Long after the boundary between law and morality had been clearly perceived, functionaries who were in the habit of altering the law without having authority to legislate found it convenient to disguise the fact that they were appealing from law to morality, by asserting that they were merely administering the law of Nature instead of law positive.
[50] As old rules become too narrow, or are felt to be out of harmony with advancing civilisation, a machinery is needed for their gradual enlargement and adaptation to new views of society. One mode of accomplishing this object on a large scale, without appearing to disregard existing law, is the introduction, by the prerogative of some high functionary, of a more perfect body of rules, discoverable in his judicial conscience, which is to stand side by side with the law of the land, overriding it in case of conflict, as on some title of inherent superiority, but not purporting to repeal it. Such a body of rules has been called ‘Equity.’ It consists in reality of such of the principles of received morality as are applicable to legal questions, and commend themselves to the functionary in question.
Rae, John. 1884. Contemporary Socialism. Charles Scribner’s and Sons: New York.
[14] And the minimum of socialism, in his opinion, is this, that the State owes a special duty of protection to laborers because they are poor, and that this duty consists in securing to them a more equitable part in the product of general labour. The latter clause might have been better expressed in less general terms, but that may pass. The definition recognises at any rate that the paternal or the fraternal theory of government does not of itself constitute socialism, and that this must be combined with the demand for a new distribution of wealth on grounds of justice or equity, before we have even the minimum of socialism.
Lawrence, Edmund. 1884. Principles of the Commonwealth. William Clowes and Sons: London.
[308] Under a popular fallacy there must be generally some truth that indicates or has something in common with the fallacy; otherwise, a popular fallacy is generally not the apprehension of a falsehood, but the misunderstanding of a truth. The word ‘equality’ is in its etymology, both in our language and the French, connected with the word ‘equity.’ But equity signifies that which has a moral or spiritual basis; the idea of equality is absolutely mechanical. Enlightened men, both of France and other countries, know now that the equality which was supposed to be set forth in the Declaration of the Rights of Man never was, or, rather, never should have been, meant to include more than an equality of men in their conditions before the law; or, in words which are more definite, that all men have a right to be treated by the law with equity.
Davis, Noah Knowles. 1900. Elements of Ethics. Silver, Burdett, and Company: New York.
[130-131] Casting off these limitations of its technical and juridical sense, the exercise of equity in the common intercourse of men is the doing what is equal, fair and right. It is the equitable between man and man, grounded on equal subjection to moral law or equality of rights among men, whether formulated in contracts, or existing in their merely natural relations. The distinction between equity in this general sense and the justice administered by the courts, that is, between the claims of human charity or natural justice and the claims of legal justice, corresponds nearly with the distinction between imperfect and perfect rights; a distinction, however, that is merely practical, not essential. … The notion of equity and justice limited to jurisprudence, is a narrow and inadequate view bounded by a rugged horizon; but in their large and proper meaning they expand over the whole sphere of obligation, and are equivalent to rectitude and righteousness.