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10.

We have next to speak of Equity and the equitable, and of their relation to Justice and to what is just respectively. For upon examination it appears that Justice and Equity are neither absolutely identical nor generically different. Sometimes, it is true, we praise equity and the equitable man, so much so that we even apply the word ‘equitable’1 as a term of approval to other things besides what is just, and use it as the equivalent of ‘good,’ denoting by ‘more equitable’ merely that a thing is better. Yet at other times, when we think the matter out, it seems strange that the equitable should be praiseworthy if it is something other than the just. If they are different, either the just or the equitable is not good; if both are good, they are the same thing. [2]

These then are the considerations, more or less, from which the difficulty as to the equitable arises. Yet they are all in a manner correct, and not really inconsistent. For equity, while superior to one sort of justice, is itself just: it is not superior to justice as being generically different from it. Justice and equity are therefore the same thing, and both are good, though equity is the better. [3]

The source of the difficulty is that equity, though just, is not legal justice, but a rectification of legal justice. [4] The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor in the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. [5] When therefore 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 Iawgiver'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. [6] 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. [7] For what is itself indefinite can only be measured by an indefinite standard, like the leaden rule2 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. [8]

It is now plain what the equitable is, and that it is just, and that it is superior to one sort of justice. And from this it is clear what the equitable man is: he is one who by choice and habit does what is equitable, and who does not stand on his rights unduly, but is content to receive a smaller share although he has the law on his side. And the disposition described is Equity; it is a special kind of Justice, not a different quality altogether.

1 ἐπιεικές in some contexts means ‘suitable’ or ‘reasonable.’

2 Explained either as used in building with polygonal stones (but this was not peculiar to Lesbos), or in making the Lesbian form of moulding, which had a double curve.

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