Equity in English Renaissance Literature

Thomas More and Edmund Spenser

Andrew Majeske

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781135510077
• Edition: 1
• Topic: Literature
• Subtopic: Literary Criticism
• Index: Literature

This book accounts for the previously inadequately explained transformation in the meaning of equity in sixteenth century England, a transformation which, intriguingly, first comes to light in literary texts rather than political or legal treatises. The book address the two principal literary works in which the transformation becomes apparent, Thomas More's Utopia and Edmund Spenser's Faerie Queene, and sketches the history of equity to its roots in the Greek concept of epieikeia, uncovering along the way both previously unexplained distinctions, and a long-obscured esoteric meaning. These rediscoveries, when brought to bear upon the Utopia and Faerie Queene, illuminate critical though relatively neglected textual passages that have long puzzled scholars.

Chapter One

Renaissance Equity in Classical Perspective

CONTEMPORARY EQUITY, THE EQUALITY PRINCIPLE, AND THE RULE OF LAW

This chapter surveys the long history of the idea of equity from its Greek roots in the concept of

, through its alternative source in the Roman Latin aequitas. It then examines the uneasy merger and modification of these two concepts in the Christian Latin aequitas. Finally, it addresses the complex and rapidly changing idea of English equity as it transforms over the course of the sixteenth century. An overriding objective of this chapter is to highlight what I consider to be the core concern of English equity at the outset of the sixteenth century, a concern that derives from Aristotle's treatment of

in his Rhetoric and Ethics. Sixteenth century changes to the meanings of justice, law, and the sort of equity present on the Continent, particularly in places with a Roman Law tradition, has tended to obscure this original core concern of English equity.

Initially, in order to overcome common preconceptions about what equity means, and to make clear its former meanings—meanings many readers may at first resist as being counter intuitive—I must briefly address contemporary perceptions, issues, and interpretations relating to equity.

Equity's jurisprudential meaning today is negligible. If it is mentioned at all in contemporary philosophy of law texts, is relegated to an historical footnote. The situation in political philosophy texts is similar—equity receives little or no attention. To the extent it is addressed at all, the concept is associated with a series of legal “maxims” or “principles” such as “equality is equity.” This particular maxim is, of course, especially revealing—if “equality” is “equity,” what independent significance or value does equity possess?

If there is still a general notion of the sort of equity once associated intimately with justice, separate from equality, it is when it means a kind of fairness involving even-handedness. But even this meaning, it is clear, partakes of equality. Consequently, equity, in the sense of fairness, is typically used today in situations such as those describing “gender equity” and “pay equity.” The critical issue in these cases is whether a certain person or group is being treated equally as compared to another person or group. The question being addressed is whether disparate treatment or pay violates the equality principle; that is, what is considered fair is “equal” treatment or pay. Equity's almost universal identification with equality is a relatively new development in the long history of the concept, especially when we begin to consider its root principles stretch back to classical Greek

and classical Roman aequitas.

We should especially notice that the contemporary conception bears little or no resemblance to the Aristotelian conception of

, which is not equality-based. In fact, from a certain perspective, Aristotelian

is directly opposed to contemporary equity based on equality. As already mentioned and as will be detailed in Chapter Two, Aristotelian

emphasizes and deals with the unique aspects of each case—it highlights and concentrates on what distinguishes one case from another—what makes each case unique. In Anglo-American jurisprudence, equity has an opposing emphasis. It has been reduced into several objective categories (the “maxims”), and cases are aggregated into one or another category so that they can be compared (equated) with other cases, and dealt with in a similar fashion. The objective of this is to deal with (artificially) “similar” cases in “similar” ways. The problem with this approach is that square pegs are being forced into round holes. The distinguishing features of each case—what makes it unique according to Aristotle—are treated as irrelevant, or only taken into account in a limited way—for instance, as aggravating or mitigating factors in the sentencing phase of a criminal proceeding. By treating “similar” cases in “similar” ways, a kind of equality is manufactured, and the results can be viewed as “fair.” Needless to say, the contemporary meaning of equity is in tension with its older meanings, and it leaves much to be desired in terms of its relation to “fairness,” as commonly understood.

Equity based on equality, in short, enhances the predictability of the outcome in any given case because distinguishing circumstances are irrelevant. In this way numerous cases can be equated and decided based on the same principle. The supposed virtues of this approach are predictability, convenience, reduced expense, and the limitations placed upon the use of discretion. In contrast, the meaning of equity associated with Aristotelian

(which I will refer to as “Aristotelian equity”), considers and weighs all of the distinguishing features of individual cases and is, consequently much more unpredictable as to outcome due to the unique features of each case, inconvenient, rather expensive since individual attention must be devoted to each case, and subject to more expansive judicial discretion.¹ Be all this as it may, I argue that most people would agree, upon sober reflection, that a truly equitable, that is, a fair result requires examining and taking into consideration the surrounding circumstances of a case before rendering judgment on it.

While much can and has been said about the virtues of the equality principle, which De Tocqueville described as that “well nigh irresistible principle of authority in the modern world,” its shortcomings tend to be overlooked or obscured, except to the extent they interfere with other sacrosanct modern principles, like (individual) liberty and freedom (Jaffa 1975, 149). As I have already implied, the fundamental shortcoming that I would like to highlight here is the simple equation of equality with what is fair. This equation causes severe tension, because in the name of equality the unique circumstances of individual cases are ignored—and this results in outcomes that frequently defy common sense—the punishment assessed does not “fit” the offense. We intuit that these disproportional results are somehow unfair. But the long-standing identification of equity with equality, and the esteem with which equality is viewed, hinders a thoroughgoing critique of the premises of the equality principle from the perspective of an older understanding of equity.

The profound danger of not performing such a critique, and making adjustments warranted thereby, is that frequent disproportional results can cause people to question the justice of the legal system—to question the merits, viability, and desirability of the rule of law. In other words, such results present a danger to the regime itself. A solution to this problem, if there is one, might be to restore a full understanding and appreciation of Aristotelian equity. While a full return to this older meaning of equity may be neither possible nor desirable, at least being aware of it as an option might help to address problems stemming from what I consider to be an over-reliance on the equality principle. Perhaps we could view our contemporary “equality as equity” position as one extreme point on a continuum, and Aristotelian equity—treating each case as unique—as close to the other extreme. Viewed in this way, a new balance could be struck which takes individual circumstances more into account, yet still maintains an acceptable level of predictability, convenience, and expense.

Given the grave nature of the problem—one that could endanger the regime itself—some such effort at reevaluation seems especially worthwhile. A brief overview of a contemporary issue highlighting some of the problems with the contemporary identification of equity with equality will be instructive. This overview is intended to illustrate the nature of the contemporary inability to identify a way out of the predicament of the very constrained way in which equity and justice are conceived, and to suggest that once there was an alternative conception of equity, namely Aristotelian equity, that was not based on equality and that seems to point to a solution to this predicament.

The prime example of a contemporary issue that cries out for something closer to Aristotelian equity is that of “zero tolerance” policies, rules, regulations and laws (which I will refer to as “zero tolerance laws”) adopted throughout the United States, and following our example, increasingly throughout the world. These zero tolerance laws are successfully defended against accusations that they are unfair by pointing out that everyone receives and can expect to receive “equal” treatment with everyone else. But this way of defending zero tolerance laws should only prevail if equity—what is considered fair—were truly identical to equality. That is, if equity still is identified with what is fair, doesn't it continue to resemble in some now veiled sense, Aristotelian equity? I contend that when the issue is pressed, there is no general agreement that equality is the only, or even the principal way, to determine what is fair. Common sense insists that at some level fundamental fairness requires taking individual circumstances into account, these must play some role or factor. Consider the irrationality of the following outcomes resulting under zero tolerance laws adopted by many school districts respecting drugs and weapons. Pursuant to these policies, a ten year-old Colorado honors student was punished for weapon possession because her mother's lunch sack, mistakenly switched with her own by the girl's mother, contained a paring knife for an apple. Does punishing the little girl for her mother's innocent mistake really seem to be a proportional outcome—does the punishment at all fit the offense? Does common sense allow us to disregard completely the apparent fact that there was no intent present to bring a “weapon” to school?²

Or consider the case in which a thirteen year-old Texas girl was punished for possessing Advil, or another where teenage Ohio girls were punished for taking Midol. In their cases, at least, they perhaps intended to bring a “drug” onto campus. But does this really justify their being treated in the same way as students who intentionally bring illegal drugs to school? The equality principle requires that all of these youths be punished in similar ways regardless of circumstances—this lack of “tolerance” overrides obviously relevant circumstances like mistake, lack of intent, capacity, or magnitude. Authorities justify the punishment as being “fair” because everyone can expect the same treatment regardless of circumstances, even obviously relevant ones. We sense that something has gone terribly wrong in some of these cases.³ Ignoring relevant circumstances defies common sense and hints of extremism. But today there exists a profound difficulty identifying what the problem is precisely with the equality principle, and unless it can readily be identified, it cannot be adequately addressed. The problem cannot be identified because it is difficult to conceive of an idea of fairness, of a meaning for equity, which is not based on the equality principle. As long as the authorities can defend zero tolerance laws on the basis that people are being dealt with “equally,” the fact that some outcomes are obviously unfair when surrounding circumstances are considered, will continue to create tension within the meaning of what constitutes justice. If this continues it will eventually become more and more obvious that many or all laws are unjust in some significant sense. As this fact becomes public knowledge, it will work to undermine the rule of law.⁴

Our elevation of the equality principle to near sacred status may prevent us from seeing other ways of perceiving fairness—most particularly of seeing or appreciating Aristotelian equity. Let me dwell for a moment on the nature of this blinder. Equality tends to mean that form of justice “that is seen as treating all” people alike. It culminates in the “rule of law,” in which “the emphasis is placed less upon what the law should be than upon the assurance that all should have applied to them alike the laws of the community” (Anastaplo 1975, 63). The critical problem with the equality principle, so understood, is that the “rulers are left . . . free . . . to do what they choose—so long as the government is compelled to apply the same rules to all” (63).

The focus on equal application of the laws as being the cornerstone of fairness—of a broad sense of justice—draws attention away from the defects inherent in the laws.⁵ The defective nature of laws, as identified by Aristotle, involves their necessarily general statement. This defect is hidden. This concealment is especially the case in western jurisprudential systems which claim that laws rule, not people—in these systems the “rule of law” is viewed with almost sacred reverence.⁶ Another factor that tends to obscure the defective nature of laws includes the rise of legal positivism, the initial roots of which can be traced to Machiavelli, with a fuller expression in the works of Thomas Hobbes. This doctrine suggests that the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgments
• Introduction
• Chapter One: Renaissance Equity in Classical Perspective
• Chapter Two: Equity in Aristotle and Plato
• Chapter Three: Equity (Aequitas) in Thomas More's Utopia
• Chapter Four: Equity in Book V of Spenser's The Faerie Queene
• Afterword
• Appendix A
• Appendix B
• Appendix C
• Notes
• Bibliography
• Index