Equity – law and idea
Equity – law and idea

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Equity – law and idea

3.3.1 Equity’s purpose reconsidered

Yet the reason for equity’s flexibility now is only insofar as it aids the development and progress of capitalism. And evidence for this can be determined by considering Smith’s account of the role equity plays in countering opportunism. Thus you return again to the tension between what equity’s purpose ought to be: should it counter opportunism in the name of capitalism, i.e. help secure a better and more efficient domain of property rights (albeit an increasingly unequal and elitist one); or should it reveal and criticise precisely these types of inequalities fostered by capitalism on behalf of the many and not the few? Use the box below [Tip: hold Ctrl and click a link to open it in a new tab. (Hide tip)] to answer this question.

Exercise

What do you think equity's purpose should be? Choose one of the two responses below and type it into the box underneath.

  • To reveal and criticise precisely the types of inequalities fostered by capitalism on behalf of the many and not the few.
  • To counter opportunism in the name of capitalism, i.e. help secure a better more efficient domain of property rights (albeit an increasingly unequal and elitist one).
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Answer

Some may argue that there is no need to recount equity’s Aristotelian and Platonic roots because equity has drifted so far from such points of view that they are no longer relevant to its modern day application, and whether it helps or hinders capitalism is purely a functional matter. The counter argument, however, is that preserving the philosophical and idealised basis of equity is one way in which it is possible to maintain a viable mode of critique of capitalism that would otherwise succeed in transforming law and legal reason in its entirety to meet its own ends. It ensures equity remains that which causes men of law to have, in Ellul’s words, ‘twinges of conscience’ (1964, p. 295). This highlights not only a significant and important political role that equity has, but also that equity need not simply bow to capitalism. Instead equity remains capable of questioning and challenging those aspects of capitalism that can be seen and said to reject fairness and justice for the many and for the commonwealth. As Dennis Fox has stated: ‘To the degree that a legal system endorses equity, it recognizes the principle that community notions of fairness and discretionary justice may appropriately outweigh legal logic narrowly used in pursuit of other goals’ (1993, p. 103).

Since at least the nineteenth century the financialisation of socio-legal institutions has resulted in the definitive and definitional transformation of modes such as equity. As a consequence, other than the form of equity that supports and maintains economic domination – namely the law of equity – all other forms of it, and most notably those that recall conscientious practices associated with communal and social life not rooted in financialisation, have been attenuated or repressed. These forms of equity do not after all suit ideologies such as capitalism because they are uncertain and unknowable to some degree. ‘A law created as a function of justice’, Ellul claimed, ‘has something unpredictable in it which embarrasses the jurist’ (1964, p. 292). This has produced a legal system that dispenses forms of justice that are rarely if ever defined beyond managed and measured economic considerations that benefit a particular class of economically privileged individuals. Thus, it is argued, equity today is leached of any tangible conscientious moral or ethical content, despite the fact judges in court, as well as the mainstream narratives of legal education more generally, continue to pay lip-service to these characteristics. A key question when posed with such fallacies, therefore, is: whose ideas and experiences of fairness and justice are actually defining contemporary equity?

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