Equity as a Conservative Principle
Conservatives should not allow the concept of equity to be undermined by ideologues.
Over the past decade or so, so-called diversity, equity, and inclusion (DEI) has become one of the most hotly debated topics in American political and social life. We have heard it used with increasing regularity in contexts ranging from human resources to highways. It is ubiquitous on college campuses with their expansive—and growing—bureaucracies dedicated to it.
While the first and last of these are fairly self-explanatory, the recent insertion of “equity” into the older and more familiar “diversity and inclusion” has caused both confusion and consternation. Simplistic attempts to illustrate equity have met with challenges from both the right and left.
But what is equity?
As it is now commonly used, the term “equity” serves as something like a cross between an ideological buzzword and a political cudgel. Though often left undefined, equity has come to be associated with any number of progressive pieties on issues ranging from race to reproduction and beyond.
The response on the American right has tended to be a total rejection of the concept of equity, under the assumption that it is some kind of recent interpolation intended to overturn our constitutional heritage. To be sure, as it is commonly used, it does pose a serious threat to the rule of law and our Constitution. But rejecting the concept entirely is a mistake.
Equity, rightly understood, is a concept with deep roots in the Western philosophical, political, and jurisprudential tradition. More importantly, it is a concept that is essential to a just and prudent political order. Far from being an alien concept in Western philosophy, equity has been considered an integral aspect of justice by virtually every political and legal theorist.
There is an ancient Roman maxim that declares summum jus, summa injuria—plausibly rendered "the extremity of the law is extreme injury." This maxim summarizes the legal concept that underlies equity, rightly understood.
Greek and Roman legal theory distinguished between jus (law) and aequitas (equity). The distinction is rooted in the recognition that, at times, the law as written is ill-suited to render justice in a concrete circumstance, due to the peculiarities of the case. It recognizes that the letter of the law sometimes needs to be supplemented or corrected by common sense or natural law, thereby avoiding the “extreme injury” that can be caused by an overly zealous application of the written law.
To see why, it is helpful to return to Aristotle’s account of equity (epieikeia) in his Nicomachean Ethics—perhaps the first philosophic articulation of the concept.
In the chapter examining the virtue of justice, Aristotle raises the question equity. The equitable, he explains, presents a difficulty because though it is itself just, it “is not legal justice, but a rectification of legal justice.”
By their very nature, laws “speak in general terms” because lawmakers have to look to what ordinarily happens. But generalities cannot be directly applied to the concrete circumstances of human conduct, because it is “essentially irregular”. Even the best law construed by the wisest lawgiver would fail to render perfect justice, because the abstract and general nature of written law necessarily misses the concrete irregularities of human action.
Equity strives to “rectify the defect” where the lawgiver’s absolute pronouncement is insufficient to the task of rendering justice in a particular case. Equity does not violate the principle of the law but tries to apply the law in the way that the lawmaker would find consistent with his intent.
In other words, for Aristotle, equity strives to uphold the spirit of the law, allowing the abstraction of the law to come into contact with the messiness of reality. True equity does not overturn legal justice, but supplements it. Equity works to achieve the deepest aim of the law—rendering justice and upholding the common good—within the framework of the law.
Rooted in this basic theoretical articulation, numerous other thinkers—including Cicero, St. Thomas Aquinas, Thomas More, and William Blackstone, among many others—took up the concept and further refined it.
Equity is particularly associated with the English common law system, given the theoretical and practical advancements made by More and Blackstone.
In fact, for several hundred years, the English legal system had institutions specifically tasked with applying principles of equity to legal cases. Consistent with the Aristotelian concept, these courts of equity were authorized to hear special appeals and apply remedies that were outside the scope of ordinary law, rooted in moral and common-sensical—rather than strictly legal—reasoning. This English system of law is the same system that ultimately gave rise to American constitutionalism, and, as such, our own Constitutional system is deeply rooted in it. (While most court systems have unified the law and equity functions, several states—including my own native Delaware—retain the separate court systems handed down from the English common law.)
There are three primary takeaways for conservatives from this account of equity.
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First: In practice, equity recognizes the inherent messiness of history and the contingency of human affairs, as well as the central role that the moral imagination and prudence serve in the achievement of justice. It recognizes that reality cannot be fitted to any pre-existing ideological scheme, because the abstract and universal will always fail to account for aspects of the concrete and particular. In this sense, equity stands in stark contrast to utopian theories of justice rooted in abstract ideologies determined to force reality—including the stubborn realities of human nature and society—into preconceived, rigid, and abstract patterns. Equity, in fact, is radically anti-utopian in its recognition that reality is far too complex to be forced into any narrow ideological straitjacket. In the real world, any semblance of justice that might be attained requires a humble and prudent approach to human affairs.
Second: Because equity appeals to the moral imagination and common sense to rectify defects in the written law, it presents an inherent challenge to legal positivism and to progressive politics rooted in postmodern social theories of power. By recognizing that laws may need to be supplemented or corrected by reason and common sense, equity recognizes a standard against which those enactments can be judged. This, in turn, implies that justice is rooted in a kind of natural law. In recognizing that there is a rational and intelligible natural law against which laws may be judged, the “who-whom” account of politics loses potency in favor of a politics rooted in a genuinely common good.
Finally: When it is rightly understood, the concept of equity is not an illegitimate interpolation in our constitutional heritage or our received idea of justice. Equity as an aspect of justice possesses deep roots in our heritage—roots that cannot be cut without serious loss. Conservatives should no longer allow equity to be undermined by ideologues who would subvert it even as they claim it for their own. Instead, equity should be reclaimed as a fundamentally and essentially conservative principle.