Jurisprudence
Justice versus Equity
At a Glance ▪ Justice is the wider end of law, rendering to each his due (Notes 21 and 51). Equity is a species of justice that corrects the rigidity of general law in the particular case. ▪ Aristotle (Nicomachean Ethics, Book V): epieikeia corrects law where it is defective owing to its universality; like the lead rule of the Lesbian builders, it bends to the shape of the stone. ▪ Rome: aequitas worked through the praetor, who could aid, supplement or correct the civil law. England: the Chancellor and the Court of Chancery; after the Earl of Oxford's Case (1615) James I ruled in 1616 that where equity and common law conflict, equity prevails. ▪ The Judicature Acts 1873 to 1875 fused the administration, not the substance, of law and equity. Maitland: equity came not to destroy the law but to fulfil it. ▪ India: justice, equity and good conscience filled gaps; equity is codified in the Specific Relief Act, 1963 and the Indian Trusts Act, 1882. Art. 142 complete justice supplements but cannot supplant statute (Supreme Court Bar Association, 1998). |
A garment factory makes shirts in standard sizes, and for most customers a size forty fits well enough. But a customer with one arm longer than the other is ill served, not because the size chart is bad but because no chart can foresee every body. The tailor who lengthens a sleeve is not rejecting the size chart; he is completing it. General law is the size chart, equity is the tailor's alteration, and justice is the goal of a shirt that fits. This note explains how equity relates to justice, from Aristotle's lead ruler to Art. 142; the kinds and theories of justice are in Note 21 and the relation of law and justice in Note 51.
Figure: Aristotle's Lesbian rule: strict law as a rigid straight-edge laid the same way on every case touches only the high points and leaves gaps where the rule does injustice, while equity, like the builders' flexible lead rule, bends to follow every contour of the particular case
1. Justice as the Genus, Equity as the Species
Justice is the widest of the ideas involved. It is the end law exists to serve, rendering to each his due, and embraces distributive, corrective, procedural and social justice (Note 21). Law pursues justice through general rules (Note 51). Equity is justice applied to the particular case where the general rule, applied literally, would defeat the justice it was made to serve. Equity is therefore not a rival to justice but a species of it: justice in its corrective, individualising form. Nor is it opposed to law: it presupposes law and works upon it.
Keep three senses apart: the broad sense (fairness, almost a synonym of justice), Aristotle's sense (correction of a general law in a particular case), and the technical English sense (the rules of the Court of Chancery: trusts, specific performance, injunctions).
2. Aristotle: Epieikeia and the Lesbian Rule
In Book V of the Nicomachean Ethics, Aristotle asked how the equitable can be just and yet better than the just. His answer was that all law is universal, but about some things it is not possible to make a universal statement that will be correct. When a case arises that the rule did not foresee, it is right to correct the omission and to say what the lawgiver himself would have said had he been present, and would have put into his law had he known. The equitable is just, and better than one kind of justice: not better than absolute justice, but better than the error that arises from the absoluteness of the statement.
His image is the leaden rule of the Lesbian builders, a ruler of lead that bent to the shape of an irregular stone instead of staying rigid: where things are indefinite, the rule must be indefinite too. Aristotle added that the equitable person does not insist on his strict rights to the harm of others, even when the law is on his side.
Classic Definitions ▪ Aristotle (Nicomachean Ethics, Book V): equity is a correction of law where it is defective owing to its universality (paraphrase). ▪ Papinian (Digest): the praetorian law was introduced to aid, supplement or correct the civil law for the public good (paraphrase). ▪ Maitland (Equity): equity came not to destroy the law but to fulfil it; it is a gloss on the common law and presupposes its existence (paraphrase). |
3. Roman Aequitas and the Praetor
Rome met the same problem. The old ius civile was formal and narrow. The praetor, the magistrate in charge of civil justice, announced in his edict the remedies he would grant, and by creating new actions and defences built up the ius honorarium, which in Papinian's description aided, supplemented and corrected the civil law. Its guiding idea was aequitas, fairness against strict law. Maine made equity the second of his agencies of legal change, after fictions and before legislation: unlike fiction, it openly claims to override the old law by a higher principle.
4. English Equity: The Chancellor's Conscience
By the fourteenth and fifteenth centuries the English common law courts were tied to rigid writs: if no writ fitted, there was no remedy, and the usual remedy was money damages. Disappointed suitors petitioned the King, who referred them to the Lord Chancellor, keeper of the King's conscience. The Chancellor acted in personam, ordering the defendant himself to act or refrain on pain of imprisonment. From this jurisdiction grew the Court of Chancery, and with it the trust, specific performance, the injunction, rectification, rescission and the equity of redemption in mortgages.
Early equity was attacked as unpredictable because it rested on one man's conscience. John Selden, in his Table Talk, called equity a roguish thing that varied with the conscience of whoever was Chancellor, as if the standard measure of a foot were made the length of the Chancellor's foot. Under Lord Nottingham and Lord Eldon equity became a settled system of precedents: it had begun as justice free of rules and ended as a body of rules.
Earl of Oxford's Case Court of Chancery, 1615 The question was whether Chancery could restrain a party from enforcing a common law judgment obtained against conscience. Lord Ellesmere LC held that it could: the Chancellor does not reverse the judgment but acts on the conscience of the party who would take unconscionable advantage of it. He reasoned, echoing Aristotle, that no general law can meet every particular case. Coke CJ denied that Chancery could interfere with the common law courts. James I, advised by his law officers including Francis Bacon, decided in 1616 for Chancery: where equity and the common law conflict, equity prevails, a rule later enacted in the Judicature Act 1873. |
5. The Maxims of Equity
The principal maxims ▪ He who seeks equity must do equity. A claimant must himself be ready to act fairly; a borrower who asks to set aside an unconscionable bargain may have to repay what he received. The maxim looks to the future. ▪ He who comes into equity must come with clean hands. Relief is refused to a claimant whose own conduct in the same transaction is tainted. The maxim looks to the past. ▪ Delay defeats equities. Equity aids the vigilant, not those who sleep on their rights; unreasonable delay (laches) bars relief. ▪ Equity follows the law. Equity respects legal rights and legal rules, departing from them only where strict application would be unconscionable. ▪ Equality is equity. Where there is no reason to prefer one claimant to another, a fund or property is divided equally. ▪ Equity acts in personam. Equity's orders bind the person, so a court may order a defendant within its jurisdiction to deal with property situated elsewhere. ▪ Others: equity will not suffer a wrong to be without a remedy; equity looks to the intent rather than the form. |
6. Fusion: The Judicature Acts
For centuries England had two sets of courts, and a litigant might win at law only to be restrained in Chancery. The Supreme Court of Judicature Acts 1873 to 1875 created a single Supreme Court whose every division could administer both law and equity, and provided that where their rules conflict, equity shall prevail. The fusion was of administration, not substance: legal and equitable rights remain distinct, and equitable remedies discretionary. Ashburner put it memorably: the two streams of jurisdiction, though they run in the same channel, run side by side and do not mingle their waters (paraphrase).
Maitland, in his lectures on Equity, explained that equity was never a self-sufficient system but a gloss on the common law, presupposing it at every point: without the common law equity would have been left in the air, while without equity the common law would have carried on, though often doing injustice. Equity is justice correcting law, not replacing it.
7. The Two Compared
Basis | Justice | Equity |
|---|---|---|
Scope | The whole end of law: rendering to each his due | A species of justice: correcting law in the particular case |
Relation to law | The standard by which law is judged | Works on law: supplements and corrects it |
Focus | General and particular; distributive and corrective | The individual case where the general rule fails |
Historical vehicle | Philosophy, constitutions, legislation | Aristotle's epieikeia; the praetor; the Chancellor |
Form | An ideal, with no court of its own | Also a technical body of rules and maxims |
Typical remedies | Every lawful remedy | Discretionary: specific performance, injunction, rectification |
Indian home | Preamble; Arts. 38 and 39A | Specific Relief Act 1963; Indian Trusts Act 1882; Art. 142 |
8. Equity in India
In British India the regulations governing the Company's courts directed judges, where no specific rule applied, to decide according to justice, equity and good conscience. In Waghela Rajsanji v Shekh Masludin (Privy Council, 1887) the phrase was read as meaning the rules of English law so far as they were applicable to Indian society and circumstances. Through this door much English equity entered Indian law.
Unlike England, India largely codified equity. The Indian Trusts Act, 1882 states the law of private trusts; the Specific Relief Act, 1963, which replaced the Act of 1877, governs specific performance, injunctions, rectification, rescission and cancellation of instruments; the Transfer of Property Act, 1882 embodies equitable doctrines such as part performance (Section 53A); and the Contract Act deals with quasi-contracts in Sections 68 to 72. The Specific Relief (Amendment) Act, 2018 made specific performance of contracts the general rule, subject to the Act's exceptions, rather than a discretionary remedy, carrying Indian law away from equity's traditional discretion.
Supreme Court Bar Association v Union of India Supreme Court of India, 1998 Art. 142 allows the Supreme Court to make any order necessary for doing complete justice in any cause or matter pending before it, equity's corrective idea in constitutional form. But the Court held that the power is supplementary: it cannot be used to supplant substantive law or to achieve indirectly what a statute expressly prohibits. The Court therefore could not suspend an advocate's licence, a power the Advocates Act, 1961 vests in the Bar Councils. On Union Carbide (1991), see Note 51. |
Raghunath Rai Bareja v Punjab National Bank Supreme Court of India, 2007 The Court held that where the law is clear it must be applied even if the result is harsh, because equity can only supplement the law and cannot supplant or override it; the maxim dura lex sed lex (the law is hard, but it is the law) applies. |
9. Evaluation
Equity's history is a cycle: justice in the individual case, criticised as uncertain (the Chancellor's foot), hardens into maxims and precedents that may themselves need correcting. Justice needs both general rules and a safety valve for the unforeseen case. Too little equity and law becomes the rigid straight-edge; too much and it becomes the judge's personal conscience. India keeps the safety valve in codified equitable remedies, in purposive interpretation and in Art. 142, while insisting, as Aristotle did, that equity corrects the law in the lawgiver's own spirit and does not replace it.
Memory Aid ▪ Analogy: the size chart and the tailor. General law is the size chart, equity the tailor's alteration, justice the shirt that fits. ▪ Aristotle's tool: the lead ruler. Iron straight-edge = strict law; Lesbian lead rule = equity, bending to the stone. ▪ Maxims: 'Do Clean Delays Follow Equal Persons?' Seek equity, Do equity; Clean hands; Delay defeats equities; equity Follows the law; Equality is equity; equity acts in Personam. ▪ Dates: 'Oxford 1615, Judicature 1873 to 1875, Trusts 1882, Specific Relief 1963.' Equity prevails, then is fused, then is codified in India. |
Exam Corner: Likely Questions ▪ Distinguish justice from equity. Explain Aristotle's view of equity as a correction of law. ▪ Trace the growth of equity in England from the Chancellor to the Judicature Acts. What is the significance of the Earl of Oxford's Case? ▪ 'Equity supplements the law but cannot supplant it.' Discuss with reference to Art. 142 and Indian decisions. ▪ Explain the principal maxims of equity with illustrations. |
Exam Corner: MCQ Traps ▪ The Lesbian rule image is Aristotle's (Nicomachean Ethics, Book V), not Maine's or Maitland's. ▪ The Chancellor's foot jibe is Selden's (Table Talk). ▪ Earl of Oxford's Case (1615): equity prevails over common law in a conflict; Lord Ellesmere against Coke. ▪ The Judicature Acts 1873 to 1875 fused the administration, not the substance, of law and equity. ▪ In Maine's order of agencies of change, equity is second: fictions, equity, legislation. |
10. Frequently Asked Questions
Q. Is equity opposed to justice?
A. No. Equity is a species of justice. It corrects the injustice a general rule may cause in a case its maker did not foresee. Aristotle called it better than the justice of the rigid rule, but not better than justice itself.
Q. What did the Judicature Acts achieve?
A. They created one Supreme Court in which every division could apply both law and equity, and provided that equity prevails in case of conflict. They fused administration, not substance: equitable rights and remedies remain distinct and discretionary.
Q. Can Art. 142 be used to override a statute?
A. No. Supreme Court Bar Association (1998) held that Art. 142 supplements the law but cannot supplant substantive statutory provisions or achieve indirectly what a statute forbids. Equity in India works within the law, not against it.
See also: Note 21 (justice), Note 51 (law versus justice), Note 98 (distributive versus corrective justice), Note 67 (Savigny versus Maine), Note 42 (interpretation), Note 22 (sources of law).
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