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 COMMENT

Equity: Where Did You Come From?

Are You Long for this Life?

BY EUGENE E. SIEGELI

I
INTRODUCTION

The legal system that provides only strict law is primitive in

nature,' and unsatisfying to those societies that have reached a higher
level of jurisprudential conceptualism. Without a corrective system, the
law would become a repetitive process, applying its own rules and
failing to provide a method by which unjust results could be avoided.
This concept of a corrective force within the law is labeled equity.
Few equity courses are taught in American law schools. Equity no
longer functions apart from the law as a separate entity. The purpose
of this comment is to give the reader a fundamental appreciation for
the historical development of equity in the United States.

II
THE RELATIONSHIP OF EQUITY AND THE LAW
A. Equity as a Modifier of the Law
Historically, most legal systems have had some procedure to ac-
count for situations where strict application of the law would lead to an
unjust result. During Solomon's era, Hebraic jurisprudence required

j- Mr. Siegel is a senior student at the Glendale Law School and is Editor-in-
Chief of the Glendale Law Review.
1. See 1 R. PouND, JuIUSPRUDENCE 397 (1959).

227
228 Glendale Law Review

strict application of the law, unchangeable and absolute. To avoid

unjust results, these jurists developed the fiction, i.e., "an assumption
which conceals, or affects to conceal, the fact that a rule of law has
undergone alteration, its letter remaining unchanged, its operation being
modified." 2 While the fictions were not a true equity system, they were
equitable in the sense that early jurists recognized that strict application
of the law did not always lead to fair results.
The Greeks, although they had no codes, reported decisions or
literature of the law,' also recognized the problems attendant to a rigid
legal system. Aristotle viewed equity as a system that "corrected law
when it is defective due to its universality."' Aristotle explained the
defective situation: "All law is universal, but about some things it is not
possible to make a universal statement which shall be correct. In those
cases, then, in which it is necessary to speak universally, but not possible
to do so correctly, the law takes the usual case, though it is not ignorant
of the possibility of error."5 To correct the law, Aristotle proposed the
concept of epieikeia, "a correction of the law when the law is imper-
fect."6
Aristotle was not confronted with the difficulties attendant to
applying an abstract concept to a legal system. It was the Romans who
gave Western culture the first details of a working system of equity, the
lus Gentium, a test of reason as applied to strict law.7 lus Gentium
resulted from a peculiarity of the Roman legal system, that Roman law
was for Roman citizens only. When Rome became a vast empire, with
the duty to apply law to other societies,' the lus Gentium, the law of
foreigners,9 was developed.
The Romans sought values which were universally human,10 and
existed in every society, to temper the harshness of the application of

2. R. WORMER, THE IAw 5 (1949). An example of a modem fiction is the as-

sumption that an adopted child is a true blood heir. The application of the strict law
against rights of non-lineal descendants is altered by concealment.
3. See id. at 37.
4. Newman, The Place and Function of Pure Equity in the Structure of Law, 16
HAST. LJ. 401, 406 (1965).
5. ARISTOTLE, BASIC WORKS, in READINGS IN JURISPRUDENCE AND LEGAL PHILOS-
oPHY 440 (1951).
6. Newman, What Light is Cast by History on the Nature of Equity in Modern
Law? 17 HAsr. L.J. 677, 679 (1966).
7. R. WORMER, THE LAw 123-24 (1949).
8. Id.
9. Id.
10. Newman, What Light is Cast by History on the Nature of Equity in Modern
Law? 17 HAsT. LJ. 677 (1966).
 Equity 229

their own Roman law to those who were not previously subject to it.
Values such as charity, gratitude and kindness were incorporated into
the concept. To Roman jurisprudence goes the credit for implementing
a corrective system based on universal concepts as a modifier of the
harsh results that sometimes occur in the application of strict law.

B. Equity as a Supplementer of the Law-The English Chancery

Unlike the ancient equity systems, the English Chancery was not
equity in the sense that it modified strict law. It acted in situations
where there was no law at all or at least where the law was not perceived
as applicable to a particular factual situation.
In the period before the Norman conquest of England in 1066 the
law of revenge controlled, and trial by combat was the method for
resolution of disputes. Under this system, the aggrieved, or his kindred,
set out to avenge the injury directly against the perpetrator. Private war
ensued."
King Alfred (870-901) sought to limit the retribution and private
warfare. A statute set out particular steps needed before fighting
ensued, including thirty days notice to the adverse party, notice to
kinsmen, and the alternative of forfeiture of property if the accused party
preferred not to engage in combat.' 2 This statute was the beginning of
the writ system. The writs are the foundation for the common law
courts, a more mature legal development than trial by combat.' 3 The
common law courts later began to show a lack of response to the needs
of litigants. They became more concerned with the form and tradition
of the writs than with providing remedies.
Where the common law stated no rule for the situation in contro-
versy, the King could make law where none existed.' 4 The Chancellors,
being of an ecclesiastical background, could approach the King on
behalf of an injured person "for the love of God and in the name of
charity,"' 5 where the common law afforded no remedy. The Chancery
was established as a separate and distinct court in the fourteenth cen-
tury," and further expanded its jurisdictional base under Cardinal

11. Brodie, Anglo-Saxon Contract Law: A Social Analysis, 19 DEPAUL L. REv. 270,
273 (1969).
12. Id. at 273-74.
13. See R.WORMER, THE lAW 255-56 (1949).
14. Id. at 279.
15. Id. at 280.
16. 1 W. HOLDSWORTH, HIsToRY oF ENGLISH IAw 403 (7th ed. 1971).
230 Glendale Law Review

Wolsey."7 The early Chancellors, with their religious background,

applied canon law, which was thought to be of a higher moral quality
than the common law, and thus more responsive to the pleas for a just
and fair settlement of controversies.
When competition between law and equity arose, it was settled that
the Chancery would be limited to orders directed to litigants command-
ing their personal action. The common law courts had no procedure
for enjoining personal obedience by the litigant. The maxim "equity
acts in personam" exemplifies this division of jurisdiction. Adherence
to this principle avoided conflicts between the two entities.

C. Merger
Very early, in England, efforts were begun to combine Chancery
with the law in order to humanize the administration of justice.' 8 Early
jealousies between systems tended to dissipate over years of traditional
methodology. Separate judicial functions seemed an anachronism. This
combining of law and equity largely succeeded in the United States
under the example of the United States Supreme Court - the United
States Constitution gives it combined jurisdiction over both forms.19
Although law and equity are merged into one entity, it could be
argued that equity is better served by this arrangement. In the merger,
without jurisdictional limits, equitable concepts can be freely applied as
the clear distinctions between law and equity are no longer maintained.
Reference to the separate nature of law and equity is, however, proper.
Equity in the United States is used to define new aspects of legal rights
and accompanying duties, to point out relief, both preventive and reme-
dial, and to provide procedures by which the equity jurisdiction can be
invoked.20
III
SOURCES OF CORRECTIVE IDEALS

From the earliest writings, equity has been equated with the imple-
mentation of some higher ideal, a standard upon which the strict law is
measured. Solomon, when he prayed for "an understanding heart to

17. Id., vol. 5 at 219.

18. Newman, What Light is Cast by History on the Nature of Equity in Modern
Law? 17 HAST. L.J. 677, 679 (1966).
19. U.S. CONsTrrunON, art. III, § 2.
20. W. ROBINsoN, ELEMENTS OF AMERICAN JURISPRUDENCE § 399 (1900).
 Equity 231

judge his people rather than for knowledge of the law" 21 possibly made
the earliest expression of the equity concept. That a judge requires
something more than a knowledge of strict law is fundamental to the
idea of equity as a corrective force with respect to the law.

A. The Natural Order

Measuring the law against the natural order is a constantly reoccur-
ring concept in the history of jurisprudential theories. This high ideal
or standard has been loosely categorized as the "natural law principle",
the definition of which varies according to the view of the writer and the
historical period. The goal, however, is constant-it is justice.2 2
From its beginnings, the Chinese philosophy, while not defining
the source of natural law, contained the idea that a legal system is a
translation of natural law into written formulae. Where it fails to do
this, it is bad law; where it conforms to natural principles, it is good
law.2 3 Aristotle also thought of natural law as the ideal law, the law to
be found in the natural order of things.2 4
The Roman law, and its system of equity, took its philosophy from
Aristotle, that is, the measuring force for a legal system is the natural
order of things. 25 Rome's approach was pragmatic, since it was bound
to apply equity to an actual legal system that served a large empire, and
had no precise definition of natural order to guide it. To Roman
thought, natural law was a moral force that abhorred wrongdoing.
Maxims were developed to help jurists apply the concept, and the
injunction established to enforce obedience of its commands. 2 6 An
example of a Roman maxim that illustrates the point: "It is in accord-
ance with natural equity that no one become richer by reason of
someone else's loss."127
After the Roman Empire ended in the sixth century, Europe
entered a period wherein the source for natural law was viewed as
emanating from the law of God. The domination of Christianity over
the social processes of the era was responsible for this theory.

21. Newman, What Light is Cast by History on the Nature of Equity in Modern
Law? 17 HAST. L.J. 677, 678 (1966).
22. H. LANCASTER, THE THREAD THAT LINKS THE CHAIN 4 (1972).
23. J. WIGMORE, PANORAMA OF THE WORLD's LEGAL SYSTEMs 143-44 (1936).
24. R. WORMER, THE LAW 83 (1949).
25. Id. at 82-83.
26. See id. at 127.
27. Id. at 140.
232 Glendale Law Review

St. Thomas Aquinas defined the natural law as a two-fold conten-

tion. 28
One, there are certain principles of true morality and justice
discernable by human reason without the aid of revelation even though
they have a divine origin. Two, man-made laws that conflict with these
principles are not valid law. Aquinas set out the general view of this
historical era-the difference between good and bad law is measured by
the natural laws of divine origin. By elevating natural law to the law of
God, Aquinas created the foundation for the interplay between eccle-
siastical and strict law that arose in the English common law period,
when it was the chancellors, with religious backgrounds, that originated
and dispensed the court of equity.29

B. Rejection of the Natural Order

The nineteenth and twentieth centuries saw a serious diminishing
of the viability of the natural law theory. The reasons behind the
abandonment of this concept were the scientific advancements, particu-
larly in physics, that detailed a universe bound more by statistical
pattern than regulation by design. 0 Law and equity could not satisfac-
torily be based on a process such as the law of probability or the theory
of relativity, so new theories needed development.
Modem writers felt that the study of historical theories gave sup-
port to the view that natural law was nothing but reflections and
expressions of intuitive law processes in the mind of the author.3 '
Natural law looked to some higher authority, i.e., the King, religion,
universal law, as the measuring device for the validity of the legal system
and the search for ethical and moral values. As natural law became less
viable, other theories were brought under serious consideration by legal
thinkers, since the source authorities no longer seemed satisfying in the
modern scientific age.
Austin theorized that any definition of law that used equity as its

28. H. HART, THE CONCEPT OF LAw 152 (1961).

29. The Chancellors believed that allowing a wrong to go undone was immoral and
not in line with their basic philosophical maxim "Every law is, or ought to be, according
to the law of God." 1 R. POUND, JURISPRUDENCE 408 (1959). See 5 W. HOLDSWORTH,
HISTORY OF ENGLISH LAw 216 (7th ed. 1971).
The primary concern of the Chancellors was relief in situations where there was no
adequate remedy at law, the situations that originally created the role for the ecclesiastics
in the legal system. See 3 W. BLACKSTONE, COMMENTARIES *47-*56.
30. B. RUSSELL, WHY I AM NOT A CHRISTIAN, AND OTHER ESSAYS ON RELIGION AND
RELATED SUBJECTS 8 (P. Edwards ed. 1957).
31. L PETRAZYCKI, LAW AND MORALIT' 245 (1955).
 Equity 233

source was incorrect." The law, as described by Austin, was the

"aggregate of the rules established by political superiors." 3 Law,
under the Austin school, becomes subservient to the demands of the
power structure and would have no need for a higher source of measure-
ment in terms of morality and justice unless it serves the needs of
government. Equity, as a system of just modification of strict law, is a
nullity under this view, only another form or tool of political expediency.
A group of legal philosophers, loosely organized as the "Metaphys-
ical Club of Boston," developed concepts on the source of law.14 Charles
Peirce and Oliver Wendell Holmes, Jr., both members of the group,
particularly wanted to create a theory of sources of law opposed to
Austin's will of the sovereign. 5
To Holmes, law was determined by the prevalent moral and politi-
cal theories, public policy and the "felt necessities of the time.""
Holmes' theory was pragmatic in that he felt law was "the prophecies
of what the courts will do in fact."37 This means that "the life of the
law has not been logic; it has been experience."3 8 One must be aware
that the legal system employs something more than the strict application
of the law and logic.
The sociological analysis theory of Pound also developed out of the
modern rejection of the natural law concept. It is similar to Holmes'
view that the law develops out of the social, psychological and political
conditions. According to Pound, however, equity and natural law have
contributed four enduring ideas to the law: 40 (1) Extension of legal
personality to all human beings; (2) The law looks to substance and not
to form; (3) The duty of good faith; and (4) The idea that one person
should not be enriched unjustly at the expense of another. Examples of
this contribution to Anglo-American law are reformation and rescission,
remedies for mistake, quasi-contracts and the general availability of
specific relief. All the modem theories of jurisprudence, excepting
perhaps the Austin view, recognize the necessity of the corrective ideal.

32. 2 J. AusTIN, LECTuREs ON JURISPRUDENCE 565-66 (4th ed. 1879).

33. Id. vol. 1, 89.
34. Note, Holmes, Peirce and Legal Pragmatism, 84 YALE L.J. 1123, 1125-26
(1975).
35. Id. at 1126.
36. Id. at 1127.
37. Holmes, The Path of the Law, 10 HARV. L. REv. 457, 461 (1897).
38. 0. HOLMES, THE COMMON LAW 5 (M. Howe ed., 1963).
39. See Pound, The Scope and Purpose of Sociological Jurisprudence, 25 HARV. L
REv. 489 (1912).
40. 1 R. PouND, JURISPRUDENCE 411-16 (1959).
234 Glendale Law Review

Whatever the source definition of this ideal, implementation is neces-

sary.

1V
CONCLUSION
A study of the history of equity shows that despite the diverse
systems of equity that have occurred in the past, and despite the differ-
ing jurisprudential theories that supply the measuring source, a primary
principle runs through all these forms: the application of strict law must
be tempered by what is just to society such that failures of the law are
corrected in the interest of a fair settlement of controversies.
For equity to exist, three primary conditions must be met: (1) The
belief that strict law needs a corrective force to prevent unjust results;
(2) A source concept for morality and justice to measure the particular
application of the strict law; and (3) Mechanisms to implement the
source concept for correction of the strict law.
If Justice Pound's theory is correct that a legal system approaches
maturity as equitable concepts are applied in all situations, one should
look at judicial decisions to determine whether fairness and justice are
the basis for the courts' holdings or whether they are merely applying
strict law. The increased usage of injunctive relief and other equitable
remedies and the constant expansion of tort liability into new areas of
social intercourse, all indicate that, at a minimum, the devices developed
in historic equity have retained their worth in the modem era.
One must also consider the moral foundations of a society to
determine if equity will continue in the legal process. The philosophy
of the judicial system determines the extent to which equitable principles
are applied. What would be the result, for instance, in the event that
the three imperatives of equity became lost due to its merger with law, a
failure in the belief that strict law needs a corrective force, and a lack of
a moral and fair jurisprudential philosophy? In the dim beginning of
man's understanding of equitable concepts, Isaiah shed light on what the
end of equity would mean:
"And justice is turned away backward,
And righteousness standeth afar off;
For truth hath stumbled in the broadplace,
And uprightness cannot enter." 4 1
41. Isaiah, SoNcINo BOOKS OF THE BIBLE 290 (1949) in Newman, The Place and
Function of Pure Equity in the Structure of Law, 16 HAST. L.J. 401, 429, n. 101
(1965).