Equity before ‘Equity’
| Published date | 01 January 2023 |
| Author | Stephen Humphreys |
| Date | 01 January 2023 |
| DOI | http://doi.org/10.1111/1468-2230.12750 |
bs_bs_banner
Modern Law Review
DOI:10.1111/1468-2230.12750
Equity before ‘Equity’
Stephen Humphreys∗
The notion of ‘equity’ is undergoing conceptual repositioning in international law today,
embracing individuals as well as states and gaining an association with human rights and the
politics of protest. In the context of these developments,the present paper enquires into the
premodern rootsofthis ancientandrichtermthrough threehistor ical vignettes: rst, theemer-
gence of aequitas in Roman law – as a source of law anchored in analogy and empathy – and
in particular its relevance to the ambiguous status of slaves;second, the importance of ‘natural
equity’to the consolidation of ‘natural r ights’during the Franciscan poverty debate in 14th cen-
tury Europe, andnally,‘commonequity’ in therights-basedconstitutionalorderproposed by
the Levellersin1640sEngland. Initsrootsense, I conclude, whatwemight call‘radicalequity’
has historically lent itself to trenchant critique of the law,centred on the individual as subject of
right.
Something interestingishappeningtoequity.Traditionally, in inter national law,
‘equity’ has refer red torelations betweencountries, notablyregarding landand
sea boundaries and resource access. But recently the term has come to refer
also to the treatment of individuals.This trend is visible in international cli-
mate law–wherea‘principle’ ofequityinitiallyreferred, in1992, notonlyto
inter-state relations but also to ‘present and future generations of humankind’,
and the 2015 Paris Agreement later extolling ‘intergenerational equity’ as well
as ‘equitableaccess’ to ‘sustainabledevelopment anderadicationofpoverty’.1
But a similar trend has long been apparent at the World Health Organisa-
tion, where equity has been a key term of art since at least the 1980s, con-
cerned with ‘systematic dierences in health status between dierent socioe-
conomic groups’,2and also in more recent international proclamations such as
the 2015 Sustainable Development Goals,which speak of ‘equitable access’to
education, drinking water,sanitation and hygiene for ‘all people’. Beyond this
again, ‘equity’ has cometoinformglobal-level proteststargetinginequity:ex-
tinction rebellion, g ilets-jaunes, me-too,blacklives matter, and occupy.Inthese
cases,equity occasionally acquires a clear consonance with the register of human
∗Associate Professor,School of Law, London School of Economics and Political Science.My thanks
to MartinLoughlin, Susan Marks, andthe anonymousreviewersforhelpful, andin somecases indis-
pensable,comments. Anymistakes aremyown.
1The United Nations Framework Convention on Climate Change 1992, 1771 UNTS 107,Art
3(1); Paris Ag reement (adopted12December 2015, enteredintoforce 4November2016), UN
Doc FCCC/CP/2015/10/Add 1.
2World Health Organization (M. Whitehead and G.Dahlgren), Concepts and principles for tackling
social inequitiesin health: Levellingup Part1 (WHO, 2006).
© 2022The Authors. TheModern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(1) MLR 85–121
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, providedthe or iginal workisproperly cited.
Equity before ‘Equity’
rights, a conceptual convergence that may appear – given that a vast literature
on equity in law acknowledges no such association – both novel and tenuous.3
This recent development provides context for the present paper, but it is not
my subject.I am rather concerned here to show, through historical and philo-
logicalinquiry, that thecurrentmove isneithernovel nortenuous: equityhas,
at its conceptual root,repeatedly centred on the human person, and it more-
over shares an intimate,indeed foundational,relation with the notion of human
rights, at least at the moment of the latter’s conceptual emergence in the form
of ideas about natural rights. In making this case,I have canvassed much of the
colossal literature on this rich and ancient notion – but I have also set aside
much thatisfamiliar, andindeed central, tomostaccountsofequity –inorder
to pick out a specic,somewhat neglected thread that,I suggest, connects the
root notion of equity to its emerging contemporary signicance.
This root sense of equity is ‘radical’in several senses of the word.By ‘radical
equity’ I am referring rst to the etymological root of the word in the Latin
aequum/aequitas, initially meaning level or equal.I mean,second,the degree to
which some notion of equity played an indispensable catalytic function at the
taproot oftheveryidea oflaw itself , in itsearliestEuropeanarticulations. Third,
by radical equity I have in mind a historically repeated gesture towards an extra-
legal ground by means of which the law is to be evaluated or assessed for its
adequacy as law: anon-positive g round oflaw, which –forthat reason–escapes
nal denition. Finally, by ‘radical equity’I aim to reconnect equity with the
likewise (initially) radical notion of human rights, where it is found in the seeds
of the latter’s own beginnings.
I proceed by revisiting three historical moments during which the notion
of equity played a key role in raising or settling fundamental principles of law.
A rst vignette,centring on the ambiguous status of slaves in Roman law, ex-
amines the notion of aequitas as a kind of portal through which the non-legal
enters the law by analogy. A second vignette visits 14th century Avignon – the
famous Franciscan poverty debate – during which the appeal to natural eq-
uity provides critical ground for a new language of ‘natural rights’. In a third
moment, equity features at the heart of the novel claim to a rights-based con-
stitutional order raised by the Levellers in revolutionary 17th century England.
Together these three periods span well over a millennium,more time than a
single article can cover in detail.By moving between them,I aim to identify and
clarify a core connotation that reiterates consistently over time,and that puts
esh on the skeletal aspirations haunting today’s usage. In all three moments,
equity refers to something held ‘in common’: in Roman law,it provides a basis
for the analogical extension of law grounded in imaginative (if limited) empathy;for
the Franciscans, equityspeaks tothelegitimate power of the individual, especially
in times of necessity; for theLevellers, it becomesthe quasi-constitutional under-
pinning of individual rights. In no case,however,does the invocation of equity
decide political outcomes: rather it marks the recurrence of structurally similar
arguments over the longue durée.In my recounting of these episodes,I rely in
3See for example M. Allen et al, ‘Framing andContext’ in V.Masson-Delmotteet al (eds), Global
Warming of 1.5°C. AnIPCC SpecialReport (IPCC, 2018)55.
86 © 2022The Authors. The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(1) MLR 85–121
Stephen Humphreys
the main on the signicant scholarship already undertaken on these periods,
returning to primary sources in each case to test and consolidate the argument.
Beginning with Roman law, and relying especially on the work of Peter
Stein, Aldo SchiavoneandTony Honoré, I ndequityrstappearing –as
aequum (with bonum)andaequitas – as a principle to allow the analogical ‘nd-
ing’ of something conceived of as ‘unwritten law’.Equity in this sense allowed
for extrapolationbetween dierentcases, by assuminga backg round yardstick
against which to measure them – a notion of equality systematically invoked
at the boundary between law/non-law to extend the law through imaginative
engagement or empathy.Slaves were a paradigmatic example – outside law, they
were sometimes brought within it under the auspices of ‘natural equity’(not, in
the rst instance,‘natural law’) – but only in very limited cases, as a close reading
of Justinian’s Digest shows.Thiswasnota pr inciple ofuniversalequality; rather
it was a kind of tissue connecting an abstract law to real-world human beings.
Usage of the term immediately before the Franciscan poverty debate,some
centuries later, owed much to the (rediscovered) Digest and largely centred on
whether and how ‘unwritten law’was to be found. According to Charles Lefeb-
vre and Lorenzo Maniscalco,one view held that the Pope/ emperor/ sovereign
(and only he) may suspend existing law to exercise ‘natural equity’ in specic
cases, generally aligningwithmercyor compassion. Acompetingviewwas
that equity was best understood as a judicial aid in interpreting existing law
– which on this view already incorporates ‘written equity’ frompriordeci-
sions. For William of Ockham – a principal early exponent of ‘natural rights’
(I relyonTierney, Robinson andBrett)–‘naturalequity’ was locatednotpri-
marily or solely in the sovereign or the law, but in each individual a priori,
providing a measure to evaluate the positive law and suspend it in times of ne-
cessity – in the face, for example,of hunger,thirst,or suering. Natural equity
is, in Ockham’s hands, animmediate knowledge based on primary sensory ex-
perience, giving rise to an innate personal exercisable power prior to law. But
it also describes a limit towhatmay, equitably, be legislated.
TurningtotheLevellers, then, three centurieslater, I focuson theextent
to which they relied on a notion of ‘common equity’clearly congruent with
Ockham’s ‘natural equity’ (Isketch, butdonotdetail, thegenealogy), inassum-
ing that a law- or even constitution-making faculty or power lies within each
person. For theLevellers, ‘commonequity’ underpins‘commonrights’, which
comprise the fundamental rights of all (English)men, and which are,or ought
to be, thesource of law among equals, grounded in an intersubjective tolerance
and mutual respect against religious purism. Other radicals at this time like-
wise invoke ‘equity’to make strong political claims with a universal colouring.
Although thisusageof ‘equity’ didnotsurvive the period, the notionofan
extra-legal yardstick against which to evaluate or reform the positive law has
carriedforward, Iconclude, in thelanguageofnaturalorhumanrights.
In the common law world today, equity is a technical term for a body of
rules or principles historically associated with the English Court of Chancery.
I am not, in this paper,dealing with equity in this sense. Elsewhere,equity
translates loosely as ‘fairness’ in process or distribution – an essentially rhetorical
criterion that need neither depend upon nor direct, in any predictable sense, the
© 2022The Authors. TheModern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2023) 86(1) MLR 85–12187
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeUnlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations
Unlock full access with a free 7-day trial
Transform your legal research with vLex
-
Complete access to the largest collection of common law case law on one platform
-
Generate AI case summaries that instantly highlight key legal issues
-
Advanced search capabilities with precise filtering and sorting options
-
Comprehensive legal content with documents across 100+ jurisdictions
-
Trusted by 2 million professionals including top global firms
-
Access AI-Powered Research with Vincent AI: Natural language queries with verified citations