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SELF-STUDY - LAW AND EQUITY
"Equity" may generally be defined as the correction of a defect or error in the law. This idea is apparently of ancient origin, tracing back at least as far as Aristotle, who defined equity as an exception to the rule where the lawgiver's pronouncement is defective and erroneous. There are a number of reasons why a law may be deemed "defective" or "erroneous."
The first reason for making an equitable exception to a law was when the law suffered from "universality," that is, the law was stated too broadly by the legislators. Supposedly the legislators, had they given thought to the matter, would have created an exception to the general rule in certain cases. The defect is really one of inaccurate word-crafting on the part of the legislative drafters. Thus, in theory, the statute does not accurately reflect the true law.
Equity has also been justified in cases where common law judges refused, for whatever reason, to grant relief to a complainant. In such cases, the complainant would seek relief in another place (historically, in the Court of Chancery or a separate Court of Equity). In such cases, the law was viewed as not providing for a remedy that it ought to have.
A third justification for equity relates to so-called "hard cases," that is, where a strict application of the rule of law was clear and possible, but would have resulted in a hardship. In such cases, the harshness of the law was essentially viewed as contrary to justice.
Let's examine how these concepts of equity may be applied, if at all, to the law of God, and by analogy, to modern civil laws.
My son, if you will receive my sayings, And treasure my commandments within you . . . Then you will discern righteousness and justice and equity and every good course. [Prov. 2:1,9.]
We have discovered that law is something permanent, uniform and universal. It would be helpful to determine the extent to which lonang supports the concept of equity as a necessary or desirable exception to the law. Accordingly, the present task is to discover instances where God's law is viewed as defective or erroneous, as contrary to justice, or subject to exceptions.
If God's law has any defect or error, it would be imperfect. An imperfect law would require that God Himself is imperfect, for a perfect God could not make an imperfect law. Similarly, a perfect law could not come from an imperfect God. Therefore, either God and His law are both perfect, or they are both imperfect.
- Read Gen. 1:31, Deut. 32:3-4 and Matt. 5:48.
- Does God have any defects or errors? What are the limitations of God's perfection, if any?
- Does God make mistakes? To what extent was the creation of the world less than perfect? Were Adam and Eve created perfect?
- The law of nature is God's will impressed upon the world from the time of its creation. Is the law of nature necessarily perfect? Why or why not?
- Read Gen. 3:14-19 and Psalm 19:7. To what extent, if any, did the Fall of man and the resulting curse of the ground introduce any defects or errors into the law of nature? What was the Psalmist's view?
- Read Matt. 5:17 and Heb. 8:1-13. We know that God's covenant law with Israel was to some extent modified or fulfilled (a matter which will be considered in greater detail in later studies).
- Does this mean that God's covenant with Israel contained defects or errors?
- Were the covenant modifications introduced by the church covenant equitable in nature?
If God's law could be shown to be unjust in any respect, it would require that God Himself is unjust, for a perfectly just God could not make an unjust law. Hence, the question is whether there is any injustice with God.
The concept of justice is linked both to impartiality and righteousness. That is, what is just is also right. The definition of "righteousness" is linked to the concept of law, for the law declares what is right (or righteous) and what is wrong (or unrighteous). The word "justice" itself is based on the latin word "jus," which means "law." Therefore, justice would seem to mean "carrying out of the law." And, if law is the will of God expressed as a "rule of action," then to do justice is to carry out the will of God when expressed as a legal rule.
It would seem to be a contradiction to carry out the law of God as it should, and have the result termed "unjust." Whenever God's law is followed, the result is always just. Conversely, whenever the law of God is not carried out, no matter what the result, injustice is the result. Consequently, "justice" is not a function of, or dependent upon, someone's opinion of the results of the administration of law. Rather, the question of justice is a matter of whether the administration of law was righteous and impartial.
Justice in civil judgment requires that judges not apply the law in a partial way. That is, justice imposes a duty on every judge not to be a "respecter of persons." God is not a respecter of persons, which means that His law applies uniformly to all people. This is also the standard for human laws. Accordingly, uniformity in the application of legal rules is a necessary element of justice. A law that is not uniform is not just.
- Read Deut. 1:17, Deut. 16:18-20 and Lev. 19:15.
- What is the link between justice and impartiality in civil judgment?
- To what extent is granting exceptions to legal rules in a judicial setting a form of partiality prohibited by the law of God?
- Is it ever appropriate to apply a rule of law to some people, but not others, or to people in some situations, but not others? Can the granting of legal exceptions be reconciled with the requirement that all laws must be uniform, that is, not relative as to person or situation?
- Is justice a function of the result of the enforcement of law?
We know that God's law is uniform, not being relative as to person or situation, and that God is no respecter of persons. Yet, there are a number of situations recorded where Jesus acted in a manner the Pharisees regarded as unlawful. We now need to determine whether these actions can properly be considered either as unlawful or as exceptions to otherwise applicable rules of law. That is, did Jesus ever regard himself as being an exception to the rules of law applicable to everyone else?
- Read Matt. 15:1-3,7-9. Here Jesus was accused of breaking the traditions of the Jewish elders.
- Did Jesus justify His actions on the basis of an exception to the law?
- Was the law Jesus was accused of breaking of human or divine origin? What difference would it make?
- To what extent could Jesus be characterized as declaring that the "tradition of the elders" was not law at all? Was this an equitable judgment?
- Read Matt. 12:1-3,5-6,8. Here, Jesus was accused of breaking the law of the Sabbath.
- Is the principle of the sabbath rooted in creation and the law of nature? Was the specific offense Jesus was accused of based on the law of nature, or was it a human tradition?
- Did Jesus set aside the law of the Sabbath? Did Jesus justify His actions on the basis of an equitable exception?
- How did Jesus justify the actions of His disciples? Were they "privileged" not to obey the law because they were with Him? Were they living in an "exceptional" time or circumstance which excused obedience?
- Would the justification of what the disciples did back then apply to us today as well? How does your answer impact the legal analysis of the disciples' actions?
- Read John 8:3-11. Here, Jesus defends the woman caught in adultery.
- Did Jesus make an exception to the law of adultery? Did He nullify that law? Did He justify the adulterous woman's actions?
- To what extent did Jesus uphold the law of God and do justice? Was his defense equitable in nature, or was it procedural? What difference does it make?
- Consider and discuss the merit of the following argument: The law of adultery in ancient Israel required both the man and the woman involved to be tried and punished. See, Deut. 22:22. The fact that only the woman was accused, and not the man, is a procedural error in the conduct of the "trial." Indeed, it is doubtful that the mob which accused the adulterous woman constituted a lawful civil tribunal at all. By directing his comments to "he who is without sin among you," was Jesus making a procedural argument, that is, that no one could convict the woman in those circumstances without sin?
It remains to be considered how the concepts of mercy and grace impact the nature of law and equity. It may be argued that mercy and grace permit (or even require) exceptions to be made to the law which are equitable in nature, since "mercy triumphs over judgment." See, James 2:13. That mercy and grace are repeatedly affirmed and commended in the Bible is not disputed. However, the question is not whether mercy and grace exist, but whether they create equitable exceptions to the law, and if so, to what extent.
It would seem that mercy and grace are by definition discretionary. That is, although the Bible repeatedly admonishes people to show mercy and grace, there is apparently no legal obligation to do so in any particular case. Whether a person shows mercy in a given case is entirely discretionary, or volitional, based on all the facts and circumstances.
Thus, the Bible records cases where God chooses to show mercy in not bringing a calamity upon people ["I will relent." See, Jer. 18:8; Joel 2:13-14.] and other cases where He does not show mercy ["I will not relent." See, Ezek. 24:14; Zech. 8:14.]
Mercy and judgment, at least in the judicial context, would seem to be logically inconsistent with each other. As shown in an earlier study, judges are not supposed to exercise WILL, which is discretionary, but JUDGMENT, which is non-discretionary. Thus, if mercy is to be employed in a civil or legal context, it would seem to require employment in a non-judicial (i.e., executive or legislative) capacity.
In contrast to the discretionary mercy which executive officers may use, the biblical instruction to civil judges in pronouncing legal judgment is not to show mercy or to pardon. That is, judges were not to show pity because of the "harsh" result mandated by the law, nor allow a convict to avoid the legal penalty via payment of some form of ransom.
- Read Rom. 9:15-16. When God shows mercy towards someone, is it discretionary or obligatory on His part? Is God ever unjust in showing mercy to some people but not to others?
- Read Jer. 18:8 and Jonah 3:10. When God shows mercy towards someone, is He declaring that the law is not applicable to them, or is He merely staying execution? To what extent can the difference between these alternatives be explained on the basis of the distinction between judicial power and executive power?
- Read Matt. 18:23-35. Jesus' parable concerning the unmerciful slave urges the reader to forgive his brother from the heart. Is the parable framed in terms of a judicial case? To what extent, if any, is the parable applicable to judicial officers acting in their civil capacities? To whom is the parable applicable?
- Read Num. 35:31; Deut. 13:6,8-9; and Deut. 19:11,13.
- To what extent, if any, are these scriptures applicable to judicial officers acting in their civil capacities?
- How do you explain the difference between these texts and the New Testament admonition to forgive each other and show mercy? Do these scriptures describe two different Gods (one judgmental, one merciful), two different sets of laws (one for Israel, one for the Gentiles), or two different legal capacities (one for civil judges, one for private individuals)?
- To what extent are the admonitions of Num. 35:31; Deut. 13:6,8-9; and Deut. 19:11,13 applicable to civil judges today?
The early history of equity jurisprudence in England and America clearly distinguished law from equity. However, the distinction between law and equity has become increasingly blurred over time.
The basis of equity is the administration of grace, or discretion, to do justice. For equitable purposes, though, "justice" does not mean carrying out the law in any strict sense, but to do what the judge thinks is fair or appropriate. Consequently, equity tends to be largely a matter of personal moral conscience.
The extraordinary, or discretionary, jurisdiction of equity (historically) was based on the idea that it was the English Chancellor's role to speak for the conscience of the king in order for justice to be served. Modern equity is based on this same idea, namely, that justice is a matter of personal conscience, not a legal prescription.
It is no accident that equity jurisprudence has its roots in executive power. Although the English common law courts exercised their powers under the general authority of the king, they were primarily judicial in nature and function, limiting themselves to a non-discretionary judgment of the laws. The Court of Chancery, however, was peculiarly executive in nature. The Chancellor purported to exercise the personal conscience of the king, that is, he wielded the power of executive discretion.
In some areas of equitable jurisprudence, rules of equity became formalized through repeated usage over time. Nonetheless, these rules of equity have never lost their character as a jurisprudence of discretionary justice. A continuing hallmark of equity is the case-by-case method of analysis. This form of individualized equity is characterized by a "facts and circumstances" analysis where every case (in some sense) is treated as exceptional.
- To what extent is the exercise of the power to pardon an act of mercy? Is the pardon power executive or judicial in nature?
- When, if ever, is it permissible for a judge to find that an "exception" must be made to a civil law to properly account for the applicability of divine law?
- When, if ever, is it permissible for a judge to find that a civil law necessitates the creating of an exception to the law of nature?
- When a court engages in a facts and circumstances analysis, is the rule of law applied by the court likely to be permanent, uniform and universal? Is a facts and circumstances analysis a legal analysis at all? That is, does it result in the application of a "rule of action" in the historic sense?
- Consider and discuss the following statement by Blackstone:
[T]he liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind.
To what extent has the danger Blackstone warned of already happened?
* Copyright © 1995, 2006 Gerald R. Thompson. Used by permission.