Book 5: The Several Moral Virtues and Vices—Concluded. Justice.
Chapter 10: Of equity
We have next to speak of equity and of that which is equitable, and to inquire how equity is related to justice, and that which is equitable to that which is just. For, on consideration, they do not seem to be absolutely identical, nor yet generically different. At one time we praise that which is equitable and the equitable man, and even use the word metaphorically as a term of praise synonymous with good, showing that we consider that the more equitable a thing is the better it is. At another time we reflect and find it strange that what is equitable should be praiseworthy, if it be different from what is just; for, we argue, if it be something else, either what is just is not good, or what is equitable is not good; if both be good, they are the same.
These are the reflections which give rise to the difficulty about what is equitable. Now, in a way, they are all correct and not incompatible with one another; for that which is equitable, though it is better than that which is just (in one sense of the word), is yet itself just, and is not better than what is just in the sense of being something generically distinct from it. What is just, then, and what is equitable are generically the same, and both are good, though what is equitable is better.
But what obscures the matter is that though what is equitable is just, it is not identical with, but a correction of, that which is just according to law.
The reason of this is that every law is laid down in general terms, while there are matters about which it is impossible to speak correctly in general terms. Where, then, it is necessary to speak in general terms, but impossible to do so correctly, the legislator lays down that which holds good for the majority of cases, being quite aware that it does not hold good for all.
The law, indeed, is none the less correctly laid down because of this defect; for the defect lies not in the law, nor in the lawgiver, but in the nature of the subject-matter, being necessarily involved in the very conditions of human action.
When, therefore, the law lays down a general rule, but a particular case occurs which is an exception to this rule, it is right, where the legislator fails and is in error through speaking without qualification, to make good this deficiency, just as the lawgiver himself would do if he were present, and as he would have provided in the law itself if the case had occurred to him.
What is equitable, then, is just, and better than what is just in one sense of the word—not better than what is absolutely just, but better than that which fails through its lack of qualification. And the essence of what is equitable is that it is an amendment of the law, in those points where it fails through the generality of its language.
The reason why the law does not cover all cases is that there are matters about which it is impossible to lay down a law, so that they require a special decree. For that which is variable needs a variable rule, like the leaden rule employed in the Lesbian style of masonry; as the leaden rule has no fixed shape, but adapts itself to the outline of each stone, so is the decree adapted to the occasion.
We have ascertained, then, what the equitable course is, and have found that it is just, and also better than what is just in a certain sense of the word. And after this it is easy to see what the equitable man is: he who is apt to choose such a course and to follow it, who does not insist on his rights to the damage of others, but is ready to take less than his due, even when he has the law to back him, is called an equitable man; and this type of character is called equitableness, being a sort of justice, and not a different kind of character.