¹ Nussbaum, Martha C. “Equity and Mercy” (1993) 22 Philosophy and Public Affairs 83. All otherwise unspecified page references are to this article.Google Scholar

² Indeed, taking equity seriously would be one way of elaborating Hart's remark that even when legal rules provide no determinate guidance judges do not enjoy a completely unfettered discretion, but are instead subject to “a wide variety of individual and social interests, social and political aims, and standards of morality and justice”. Hart, H.L.A. “Problems of the Philosophy of Law”, in Essays in Jurisprudence and Philosophy (Oxford, 1983), p. 107. Note, however, that the equity tradition—at least as classically formulated in Aristotle's description of equity (epieikeia) as “a correction of law where it is defective owing to its universality”—does not (like much of contemporary legal philosophy) confine its attention to judicial discretion attributable to “gaps” in the law, but encompasses also the notion of a remedial discretion where the generality of legal rules yields an injustice in the circumstances of a particular case. See Aristotle, The Nicomachean Ethics 1137b 26–27, trans. W.D.Ross (Oxford, 1980), p. 133. For an elaboration of this last pointCrossRefGoogle Scholar, see Shiner, Roger A. “Aristotle's Theory of Equity”, in Panagiotou, S. (ed.), Justice, Law and Method in Plato and Aristotle (Edmonton, 1987), pp. 177–179.Google Scholar

³ P. 87.

⁴ p. 91.

⁵ The asymmetry is not so immediately applicable to civil cases. Because of their bilateral nature, amelioration for one party tends to result in imposing tougher standards on the other. By contrast criminal trials do not exhibit the same bilateral character: in Nussbaum's view, they are “about the defendant and what will become of him or her” and not about the victim as well (p. 121 n. 93). I therefore concentrate in what follows on the criminal law context, which is also Nussbaum's primary focus (see in particular her discussion of sentencing at pp. 115–122).

⁶ I assume here that an ethically acceptable standard of conduct must be such that compliance with it does not outrun or excessively tax ordinary human capacities. See Griffin, James “Moral Law, Positive Law”, in Tasioulas, J. (ed.), Law, Values and Social Practices (Aldershot, forthcoming). It may be, however, that Nussbaum's reference to the “tough standards of justice” is to be understood in the specific context of her discussion of the archaic conception of dike (pp. 88–92.Google Scholar

⁷ This point is vividly illustrated, in Scots law, by the declaratory power of the High Court of Justiciary to hold conduct it considers sufficiently wrongful to be criminal despite the fact that it was not, or not unequivocally, regarded as criminal under pre-existing law. Its last (explicit) invocation was in Greenhuff (1838) 2 Swin. 236.

⁸ Therefore, it is hardly surprising on this account that a major reason for the widespread condemnation of the declaratory power is its clash with the nulla poena sine lege principle. For a recent example of such criticism, see Ian Willock, D. “The Declaratory Power—Still Indefensible” (1996) Juridical Review 97, at pp. 103, 105–108.Google Scholar

⁹ Here I follow Raz, Joseph, “The Rule of Law and its Virtue”, in The Authority of Law: Essays on Law and Morality (Oxford, 1979), pp. 219–223.CrossRefGoogle Scholar

¹⁰ It is not incongruous to relate “equity” in the broad Aristotelian sense to “equity” conceived as those doctrines, remedies etc. that originated in the Court of Chancery. This is because, by at least the sixteenth century, the former was invoked as providing one of the main intellectual justifications for the latter. See e.g. Barton, J.L. “Equity in the Medieval Common Law”, in Newman, R.A. (ed.), Equity in the World's Legal Systems: A Comparative Study (Brussels, 1973), pp. 151–155.Google Scholar

¹¹ Pp. 118–119.

¹² P. 118.

¹³ P. 119.

¹⁴ See Lucas, J.R.The Principles of Politics (Oxford, 1966), pp. 139–143, 212–222.Google Scholar

¹⁵ p. 96.

¹⁶ P. 109. One might note, in this regard, Aristotle's claim that “it is of great moment that well-drawn laws should themselves define all the points they possibly can and leave as few as may be to the decision of the judges”, though his reasons for favouring tight controls on adjudicative discretion tend to be essentially pragmatic and consequentialist in nature, e.g. that judges have less time than legislators to arrive at the correct decision; that it is easier to find a few men capable of framing just laws than the large number necessary to administer substantive justice on a caseby-case basis; that legislators can achieve a more detached and unbiased perspective; and that adjudicators are more susceptible to the influence of sophistic arguments. See Aristotle, Rhetoric 1354a31-bll, trans. Roberts, W. Rhys in Barnes, J. (ed.), The Complete Works of Aristotle (Princeton, 1984), pp. 2152–2153.Google Scholar

¹⁷ P. 109.

¹⁸ Aquinas, St. ThomasSumma Theologiae vol. 28 ed. Gilby, T. O.P. (London, 1966), IaIIae.96.6; see also 97.4.Google Scholar

¹⁹ Aristotle, Nicomachean Ethics 1137b22. Yack, Bernard has argued that passages such as this invalidate the interpretation of Aristotelian equity as involving an appeal to higher “natural law principles” independent of the positive law, see The Problems of a Political Animal: Community. Justice, and Conflict in Aristotelian Political Thought (Berkeley, 1993), pp. 193–194.Google Scholar See also Gadamer, Hans-GeorgTruth and Method, 2nd. rev. edn. trans. Weinsheimer, J. and Marshall, D.G. (London, 1989), pp. 318–320.Google Scholar

²⁰ This sort of point would be contested not only by moral sceptics, but also by those who think that the possibility or otherwise of objective ethical judgments makes no difference to the legitimacy of value judgments in legal adjudication, e.g. Waldron, Jeremy “The Irrelevance of Moral Objectivity”, in George, R.P. (ed.), Natural Law Theory: Contemporary Essays (Oxford, 1992), pp. 158–187.Google Scholar

²¹ Aquinas, Summa Theologiae, IaIIae.97.4.

²² See e.g. Anthony Mason, “The Place of Equity and Equitable Remedies in the Contemporary Common Law World” (1994) 110 L.Q.R. 238, 245.

²³ Pound, RoscoeAn Introduction to the Philosophy of Law (New Haven, 1954), p. 70.Google Scholar

²⁴ Toulmin, Stephen“Equity and Principles” (1982) 20 Osgoode Hall Law Journal 1, 11–12.Google Scholar

²⁵ ibid., p. 12.

²⁶ Pound, Roscoe “The Decadence of Equity” (1905) 5 Columbia Law Review 5, 25. The tendency towards systematisation and consequent decadence is also noted by Maine with respect to both English and Roman equity, see Ancient Law, new edn. (London, 1930), pp. 73–75.Google Scholar

²⁷ See also Putnam, Hilary “Are Moral and Legal Values Made or Discovered?” (1995) 1 Legal Theory 5, 7.Google Scholar

²⁸ Hart, H.L.A.The Concept of Law, 2nd. edn. (Oxford, 1994), p. 205.Google Scholar

²⁹ See e.g. Altman, AndrewCritical Legal Studies: A Liberal Critique (Princeton, 1990), pp. 22–24.Google Scholar

³⁰ p. 110.

³¹ Nussbaum further elaborates and defends the thesis that “thinking about narrative literature [has] the potential to make a contribution to the law in particular, to public reasoning generally”, in Poetic Justice: The Literary Imagination and Public Life (Boston, 1995), p. xv.

³² Aristotle, Nicomachean Ethics 1143a19–20 and Rhetoric 1374b2–10.

³³ Pp. 94–96.

³⁴ P. 105.

³⁵ See, e.g. Posner, RichardThe Problems of Jurisprudence (Cambridge, Mass., 1990), pp. 393–413.Google Scholar Note Posner's assessment that “Literature can … illuminate the perennial issues of jurisprudence that arise from the tension between law and equity (and more broadly, between formal and substantive justice)” ibid., p. 395, which he combines with trenchant criticisms of Robin West's contributions to the law and literature movement. According to Posner, in “urging judges to discard the conventional principles of legality”, West “confuses the judicial and literary roles”, ibid, p. 413. My claim is not that Nussbaum rejects such principles, but overlooks how they mesh with equity to produce the asymmetry she rightly notices.

³⁶ Cover, Robert “Violence and the Word”, in Minow, M.Ryan, M. and Sarat, A. (eds.), Narrative. Violence, and the Law: The Essays of Robert Cover (Ann Arbor, 1992), p. 210.Google Scholar

³⁷ Nussbaum, Poetic Justice, p. 82.

³⁸ Ibid, p. 118.