Legal Foundations: The Framework of Law

by Gerald R. Thompson


Equity Jurisprudence


Having considered the biblical and historic understanding of the definition of law, it may be helpful to compare and contrast it with the historic understanding of equity and to see how equity jurisprudence has shaped the modern view of law. Equity is often used in two senses relating to law, of which only the second will be examined here.

General equity. The general sense of equity, as used by Calvin and others, is a principle which undergirds all laws in general, much as love is said to undergird all of the divine law. [See, Mat. 7:12; 22:40; Rom. 13:8-10; Gal. 5:14.]

    Equity, as it is natural, cannot be the same in all, and therefore ought to be proposed by all laws, according to the nature of the thing enacted. As constitutions have some circumstances on which they partly depend, there is nothing to prevent their diversity, provided they all alike aim at equity as their end. Now, as it is evident that the law of God which we call moral, is nothing else than the testimony of natural law, and of that conscience which God has engraven on the minds of men, the whole of this equity of which we now speak is prescribed in it. Hence it alone ought to be the aim, the rule, and the end of all laws. [Calvin, IV INSTITUTES, ch. XX.]

Particular equity. The particular sense of equity, the one which concerns us here, may be defined as a correction of a defect or error in the law, or a necessary exception to the law in order to prevent an unjust hardship.

    From this method of interpreting laws, by the reason of them, arises what we call equity; which is thus defined by Grotius, “the correction of that, wherein the law . . . is deficient.” [Blackstone, 1 Commentaries *61.]


We have discovered that law is something permanent, uniform and universal. It would be helpful to determine at this point the extent to which the biblical record supports the concept of equity as a necessary or desirable exception to the law. Accordingly, the present task is to discover instances in the Bible where God’s law is viewed as defective or erroneous, as contrary to justice, or subject to exceptions.

God’s law as defective or erroneous.

If God’s law has any defect or error, it would be imperfect. An imperfect law would require that God Himself is imperfect, for a perfect God could not make an imperfect law. Similarly, a perfect law could not come from an imperfect God. Therefore, either God and His law are both perfect, or they are both imperfect.

God is perfect. God Himself is perfect, and He has no defects or errors. Neither does God make any mistakes. His work is perfect, and He sets the standard of perfection for all people.

    “For I proclaim the name of the Lord . . . His work is perfect.” [Deut. 32:3-4.] “Therefore you are to be perfect, as your heavenly Father is perfect.” [Mat. 5:48.]

The law of nature is perfect. When God made the world, He impressed His will for its governance upon the things that were made, which is the law of nature. This law of nature, upon the completion of the creation, was perfect in every way.

    And God saw all that He had made, and behold, it was very good. [Gen. 1:31.]

The Fall of man and the resulting curse of the ground did not introduce any defects or errors into the law of nature, for the perfection of God’s handiwork and His law was still evident to the Psalmist.

    The law of the Lord is perfect . . .. [Ps. 19:7.]

The divine law is perfect. The divine law as revealed in the Bible was promulgated in the form of several divine covenants. These covenants are discussed in detail below. Some of the divine covenants, particularly the covenant with Israel (the “Mosaic law”), have been modified by subsequent covenants. The question is whether such modifications imply an imperfection (in the sense of error or defect) in the original covenant.

As will be shown below, covenant modification is allowed only to the extent that the means of effecting the covenant are changed. The purposes of any covenant cannot be changed or terminated. Thus, the purposes of the divine covenants must be perfect. The distinction between means and purposes best explains the statement by Jesus, “Do not think that I came to abolish the Law or the Prophets; I did not come to abolish, but to fulfill.” [Mat. 5:17.] In other words, the purposes of Israel’s covenant would not be abolished, but the means of effecting it would be “fulfilled.”

The modification of the means of Israel’s covenant, being itself lawful, could not have violated the original covenant, nor be viewed as an exception to it. That is, all covenants are capable of modification. So long as the modification occurs pursuant to the terms of the covenant and the law of nature, the modification is itself lawful, not an exception to any law.

Covenant modification does not imply that a defect or error existed in the original covenant. Although Israel’s covenant is regarded as “not faultless” [See, Heb. 8:1-13], this is solely from the standpoint that the means of the covenant did not completely accomplish all that God wanted to do. Therefore, He set out to make it even better. However, “incompletion” as a means of spiritual redemption does not imply a “defect” or “error” in any of the legal rules under the original covenant.

God’s law as contrary to justice.

Whether God’s law can ever be unjust is now to be determined.

There is no injustice with God. If God’s law could be shown to be unjust in any respect, it would require that God Himself is unjust, for a perfectly just God could not make an unjust law. Hence, the question is whether there is any injustice with God.

The biblical record claims God is perfect in all His ways, which means He is perfectly just. There is no injustice with God.

    “For I proclaim the name of the Lord; Ascribe greatness to our God! The Rock! His work is perfect, For all His ways are just; A God of faithfulness and without injustice; Righteous and upright is He.” [Deut. 32:3-4.]

Justice is linked with impartiality in judgment. The normal form for legal exceptions to take is that they are granted to some people, but not others, or to people in some situations, but not others. Yet, granting exceptions to rules, particularly in a judicial setting, is a form of partiality prohibited by the law of God.

    “You shall appoint for yourself judges and officers in all your towns which the Lord your God is giving you, according to your tribes, and they shall judge the people with righteous judgment. You shall not distort justice; you shall not be partial, and you shall not take a bribe, for a bribe blinds the eyes of the wise and perverts the words of the righteous. Justice, and only justice, you shall pursue, that you may live and possess the land which the Lord your God is giving you.” [Deut. 16:18-20.]

Justice in civil judgment requires that judges not apply the law in a partial way. That is, justice imposes a duty on every judge not to be a “respecter of persons.” As shown above, God is not a respecter of persons, which means that His law applies uniformly to all people. This is also the standard for human laws. Accordingly, uniformity in the application of legal rules is a necessary element of justice. A law that is not uniform is not just.

    “You shall do no injustice in judgment; you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly.” [Lev. 19:15.] “You shall not show partiality in judgment; you shall hear the small and the great alike. You shall not fear man, for the judgment is God’s. And the case that is too hard for you, you shall bring to me, and I will hear it.” [Deut. 1:17.] But if you show partiality, you are committing sin and are convicted by the law as transgressors. [Ja. 2:9.]

The definition of justice. The concept of justice is linked both to impartiality and righteousness. That is, what is just is also right. The definition of “righteousness” is linked to the concept of law, for the law declares what is right (or righteous) and what is wrong (or unrighteous). The word “justice” itself is based on the latin word “jus,” which means “law.” Therefore, justice would seem to mean “carrying out of the law.” And, if law is the expressed will of God, then to do justice is to carry out the will of God.

It would be impossible to carry out the law of God as it should, and have the result termed “unjust.” Whenever God’s law is followed, the result is always just. Conversely, whenever the law of God is not carried out, no matter what the result, injustice is the result. Consequently, “justice” is not a function of, or dependent upon, someone’s opinion of the results of the administration of law. Rather, the question of justice is a matter of whether the administration of law was righteous and impartial.

God’s law as subject to exceptions.

In the Gospel accounts, we are told of a number of situations where Jesus acted in a manner the Pharisees regarded as unlawful. We now need to determine whether Jesus’ actions can properly be considered either as unlawful or as exceptions to otherwise applicable rules of law:

Jesus knew no sin. It is the function of the law to prescribe the rules of right and wrong behavior. Consequently, for something to be a “sin,” it must be a violation of law, presumably, God’s law. If Jesus had sinned, he would necessarily have been a lawbreaker. If Jesus was sinless, He necessarily would never have broken any law of God or any valid (i.e., consistent) human law. The biblical record clearly indicates that Jesus was sinless, therefore, he broke no valid laws.

    Jesus the Son of God . . . has been tempted in all things as we are, yet without sin. [Heb. 4:14-15. See also, 2 Cor. 5:21; 1 Pet. 2:21-22; 1 Jn. 3:5.]

Jesus was accused of breaking the traditions of the Jewish elders. Did He justify His actions on the basis of an equitable exception?

    Then some Pharisees and scribes came to Jesus from Jerusalem, saying, “Why do Your disciples transgress the tradition of the elders? For they do not wash their hands when they eat bread.” And He answered and said to them, “And why do you yourselves transgress the commandment of God for the sake of your tradition? . . . You hypocrites, rightly did Isaiah prophesy of you, saying, `This people honors Me with their lips, But their heart is far away from Me. But in vain do they worship Me, Teaching as doctrines the precepts of men.'” [Mat 15:1-3,7-9.]

The law Jesus was accused of breaking was of rabbinic (human), not divine, origin. God’s law did not require a particular form of hand washing before eating bread. Thus, Jesus did not set aside the hand washing law, rather, he declared that the “tradition of the elders” was not law at all. Rather than creating an exception to any law, Jesus upheld the supremacy of God’s revealed law and affirmed its validity.

We might say that Jesus acted in the best tradition of the common law. He judged that the current human interpretations of God’s law were inaccurate, and therefore did not need to be followed. The human traditions imposed no true obligation upon Jesus or anyone else, and could lawfully be ignored. Although the Pharisees regarded their legal interpretations as having been “disobeyed,” in reality they had been overruled by a superior tribunal (of a spiritual, not a civil, nature). That is, in God’s Court, as determined by the Son of God, the traditions and interpretations of the Pharisees were declared to be not law at all.

Jesus was accused of breaking the law of the Sabbath. Did He justify His actions on the basis of an equitable exception?

    At that time Jesus went on the Sabbath through the grainfields, and His disciples became hungry and began to pick the heads of grain and eat. But when the Pharisees saw it, they said to Him, “Behold, Your disciples do what is not lawful to do on a Sabbath.” But He said to them, “Have you not read . . . in the Law, that on the Sabbath the priests in the temple break the Sabbath, and are innocent? But I say to you, that something greater than the temple is here. . . . For the Son of Man is Lord of the Sabbath.” [Mat. 12:1-3,5-6,8.]

This scripture can be interpreted a variety of ways which indicate the lawfulness of Jesus’ actions. The law of the sabbath prohibited doing any “work” [See, Ex. 20:8-11]. Since Jesus and His disciples were not harvesting the grain in any occupational sense, their actions were not “work” within the meaning of the law. The rabbinic interpretations of the sabbath law prescribed many rules for avoiding “work,” but these were not necessarily accurate understandings of the law. Some commentators understand Jesus to have abrogated the law of the sabbath altogether. In any event, His actions do not seem to be based on any form of exception, but relied on an understanding of the law which was better than the legal understanding of His critics.

Perhaps no scripture has been used to illustrate the “exceptional” nature of Jesus’ actions more than the case of the adulterous woman:

    And the scribes and the Pharisees brought a woman caught in adultery, and having set her in the midst, they said to Him, “Teacher, this woman has been caught in adultery, in the very act. “Now in the Law Moses commanded us to stone such women; what then do You say?” . . . But when they persisted in asking Him, He straightened up, and said to them, “He who is without sin among you, let him be the first to throw a stone at her.” And when they heard it, they began to go out one by one . . .. And Jesus said, “Neither do I condemn you; go your way. From now on sin no more.” [Jn. 8:3-5,7,9,11.]

This scripture could be interpreted as Jesus making an exception to the law of adultery. However, such an interpretation is not a necessary, or even the best, understanding of what Jesus did. The law of adultery required both the man and the woman involved to be tried and punished. [See, Deut. 22:22.] The fact that only the woman was brought before Jesus, and not the man, is a procedural error in the conduct of the “trial.” Indeed, it is doubtful that the mob which confronted Jesus with the adulterous woman constituted a lawful civil tribunal at all. By directing his comments to “he who is without sin among you,” Jesus was not focusing on the general sin condition of the members of the crowd, but on the fact that no one could convict the woman in those circumstances without sin. Then Jesus affirmed the law of adultery by commending the woman to “sin no more.”

Thus, in the best tradition of legal advocacy, Jesus defended the woman, not because she was innocent, but because the conduct of her trial was not just, that is, not according to the law.

Mercy and grace.

It remains to be considered how the concepts of mercy and grace impact the nature of law and equity. It may be argued that mercy and grace permit (or even require) exceptions to be made to the law which are equitable in nature, since “mercy triumphs over judgment.”

    For judgment will be merciless to one who has shown no mercy; mercy triumphs over judgment. [Ja. 2:13.]

That mercy and grace are repeatedly affirmed and commended in the Bible is not disputed here. This fact, however, does not dispose of the issue. The question is not whether mercy and grace exist, but whether they create equitable exceptions to the law, and if so, to what extent.

Mercy and grace are by definition discretionary. That is, although the Bible repeatedly admonishes people to show mercy and grace, there is no legal obligation to do so in any particular case. Whether a person shows mercy in a given case is entirely discretionary, or volitional, based on all the facts and circumstances.

When God shows mercy or compassion toward people, it is discretionary on His part. God has mercy and compassion on whomever He wills, and in this there is no injustice.

    For He says to Moses, “I will have mercy on whom I have mercy, and I will have compassion on whom I have compassion.” So then it does not depend on the man who wills or the man who runs, but on God who has mercy. [Rom. 9:15-16.]

Thus, the Bible has cases where God chooses to show mercy in not bringing a calamity upon people [“I will relent.” See, Jer 18:8; Joel 2:13-14.] and other cases where He does not show mercy [“I will not relent.” See, Ezek. 24:14; Zech. 8:14.]

Mercy and judgment, in the judicial sense, would seem to be logically inconsistent with each other. That is, judges are not supposed to exercise WILL, which is discretionary, but JUDGMENT, which is non-discretionary. Thus, if mercy is to be employed in a civil or legal context, it would seem to require employment in a non-judicial capacity. Does the biblical record support such a contention? To answer this question, it must be determined whether: 1) discretionary judgment (or, mercy) is permitted for any civil officers; and 2) discretionary judgment (or, mercy) is prohibited to judges.

Discretion is an aspect of executive power. Jesus’ parable of the unmerciful slave is framed in terms of “a certain king” who wished to settle accounts with his slaves. [See, Mat. 18:23-35.] The parable opens with the statement that the story describes what the “kingdom of heaven” is like, and closes with the statement:

    “So shall My heavenly Father also do to you, if each of you does not forgive his brother from your heart.” [Mat. 18:35.]

The implication is that when God the Father forgives people, He does so in a kingly, or executive, capacity.

Another example of this can be found in Jonah, when God relented from punishing Nineveh after it repented.

    When God saw their deeds, that they turned from their wicked way, then God relented concerning the calamity which He had declared He would bring upon them. And He did not do it. [Jonah 3:10.]

Nineveh had already been judged and condemned by God. [See, Jon. 1:1-2; 3:1-4.] When God relented, did He change his mind or His judgment? Did He create an exception to the law which the Ninevites had broken? Or can this scripture be understood as evidence that God’s judgment as judge did not change, but that God as King (and enforcer of the law) pronounced a stay of execution?

King Solomon furnishes a ready example of the difference between judicial judgment and executive “judgment.”

    Then the king said, “The one says, `This is my son who is living, and your son is the dead one'; and the other says, `No! For your son is the dead one, and my son is the living one.'” . . . And the king said, “Divide the living child in two, and give half to the one and half to the other.” Then the woman whose child was the living one spoke to the king, for she was deeply stirred over her son and said, “Oh, my lord, give her the living child, and by no means kill him.” But the other said, “He shall be neither mine nor yours; divide him!” Then the king answered and said, “Give the first woman the living child, and by no means kill him. She is his mother.” [1 Ki. 3:23,25-27.]

Solomon was under no legal obligation to pronounce the judgment he did, that is, to divide the living child in two. Thus, although his statement showed great wisdom, it was not a legal judgment at all. Rather, it was entirely discretionary on Solomon’s part.

Solomon’s order was also rhetorical, that is, he never really intended to have the living child cut in two. No one was bound to actually divide the child, whether the parties to the dispute or the king’s officers. In other words, no one could have been held in judicial contempt for failing to divide the child.

Solomon’s order was merely a device to determine the truth. That is, he did not apply any known law to the facts, but merely made a factual determination, at which point the case was closed. Thus, his judgment was not legal in nature at all. The type of discretionary judgment Solomon used was peculiarly “executive,” rather than “judicial.”

Mercy and pardon are not always a good thing. In contrast to the discretionary mercy which kings may use, the biblical instruction to civil officers in pronouncing legal judgment is not to show mercy or to pardon. That is, judges were not to show pity because of the “harsh” result mandated by the law, nor allow a convict to avoid the legal penalty via payment of some form of ransom.

    “Moreover, you shall not take ransom for the life of a murderer who is guilty of death, but he shall surely be put to death.” [Num. 35:31.]
    “If your brother, your mother’s son, or your son or daughter, or the wife you cherish, or your friend who is as your own soul, entice you secretly, saying, `Let us go and serve other gods’. . . you shall not yield to him or listen to him; and your eye shall not pity him, nor shall you spare or conceal him. But you shall surely kill him.” [Deut. 13:6,8-9.]
    “But if there is a man who hates his neighbor and lies in wait for him and rises up against him and strikes him so that he dies . . . You shall not pity him . . . that it may go well with you.” [Deut. 19:11,13.]


The early history of equity jurisprudence in England and America, in accord with the biblical record, clearly distinguished law from equity. However, the distinction between law and equity has become blurred in recent times.

Equity defined.

“Equity” may generally be defined as the correction of a defect or error in the law. This idea is apparently of ancient origin, tracing back at least as far as Aristotle.

    [Aristotle defined equity as] an exception to the rule . . . where the lawgiver’s pronouncement . . . is defective and erroneous. [Bodenheimer, Jurisprudence, at 250.]

There are a number of reasons why a law may be deemed “defective” or “erroneous.” Three of the historic reasons given were the inability of legislators to foresee all situations, the unwillingness of judges to grant relief in some cases, and the need to prevent injustice in “hard cases.”

The first reason for making an equitable exception to a law was when the law suffered from “universality,” that is, the law was stated too broadly by the legislators. Supposedly the legislators, had they given thought to the matter, would have created an exception to the general rule in certain cases. The defect is really one of inaccurate word-crafting on the part of the legislative drafters. Thus, in theory, the statute does not accurately reflect the true law.

    When therefore the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver’s pronouncement because of its absoluteness is defective and erroneous, to rectify the defect by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognizant of the case in question. [Bodenheimer, Jurisprudence, at 250, quoting Aristotle.]
    For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the general decrees of the law come to be applied to particular cases, there should be somewhere a power vested of excepting those circumstances, which (had they been foreseen) the legislator himself would have excepted. [Blackstone, 1 Commentaries *61.]

Equity has also been justified in cases where judges (typically in the common law courts) refused, for whatever reason, to grant relief to a complainant. In such cases, the complainant would seek relief in another place (typically in the Court of Chancery).

    The general ground for equitable relief was then, as it professes to be now, either the failure of the common-law courts to recognize a right, or their inability to enforce it. . . . [T]he theory upon which courts of equity have always acted from the earliest times [is] the desire to supply deficiencies, no matter for what cause, in purely legal remedies. [Bispham, Principles of Equity, at 12.]

A third justification for equity relates to so-called “hard cases,” that is, where a strict application of the rule of law was clear and possible, but would have resulted in a hardship. In such cases, the harshness of the law was essentially viewed as contrary to justice.

    In the words of the English medieval jurist Christopher St. Germain, “In some cases it is necessary to leave the words of the law, and to follow that [which] reason and justice requireth, and to that intent equity is ordained; that is to say, to temper and mitigate the rigour of the law.” In his discussion of the same problem Cicero . . . conveys the idea that a rigorous application of strict and invariable rules of law, untempered by equity, may at times produce undue hardship and great injustice. [Bodenheimer, Jurisprudence, at 363.]

The history of equity jurisprudence.

Many commentators on equity jurisprudence have noted that what we modernly refer to as equitable rules are not logically linked together by any underlying principle or set of principles. Rather, equity jurisprudence is uniquely defined as that form of justice historically administered by the English Court of Chancery.

    Equity is that system of justice which was administered by the High Court of Chancery in England in the exercise of its extraordinary jurisdiction. . .. Every true definition of equity must, therefore, be, to a greater or less extent, a history. [Bispham, Principles of Equity, at 1,2.]
    [I]f we were to inquire what it is that all these [equitable] rules have in common and what it is that marks them off from all other rules administered by our courts, we should by way of answer find nothing but this, that these rules were until lately administered, and administered only, by our courts of equity. [Maitland, Equity, at 1-2.]

Common law courts. The common law courts which developed in English jurisprudence by the end of the thirteenth century were The King’s Bench, the Court of Common Pleas, and The Exchequer. Although each of these courts had jurisdiction over different subject matters, they were all regarded as “common law” courts, that is, courts governed by strict rules of law, a formalized procedure and bound by judicial precedent. At that point in time, the common law courts had no equity jurisprudence, and the Court of Chancery did not yet exist.

    . . . the common law [refused] to adopt that part of the Roman law which may be called equitable, as distinguished from that which is merely stricti juris. [Bispham, Principles of Equity, at 9.]

The rise of the Court of Chancery. Beginning in the fourteenth century, the Chancellor, who was the King’s Secretary, was responsible for issuing legal writs to complainants who wished to bring a legal action in one of the common law courts. Gradually, the Chancellor began to take it upon himself to resolve disputes for which no legal writ in a common law court was available. This was done under the theory that the Chancellor (as the King’s agent) reserved the right to adjudicate cases which had not been expressly designated for one of the common law courts. Thus, the development of special writs for handling cases in the Chancellor’s office (the Court of Chancery) became known as the “extraordinary” jurisdiction of the Chancellor. The amount of cases handled by the Chancellor virtually exploded as more and more people sought these new writs as an alternative to seeking redress in the common law courts.

The battle for supremacy. One of the primary powers asserted by the Chancellor was the ability to prevent the victorious party in a common law suit from enforcing his judgment. In other words, the loser at law could sue in equity to prevent the enforcement of the judgment of the common law courts. The Chancellor did not declare the legal judgment void, but said that for reasons personal to the parties, enforcement of the judgment would be inequitable.

This exercise of “extraordinary” jurisdiction by the Chancellor was viewed as a threat by the common law judges to the rule of law. What the Chancellor viewed as equitable, the common law judges viewed as contempt of court. Eventually the battle came to a head in 1616, when lord Chief Justice Coke attempted to prevent a losing litigant at law from seeking equitable relief to prevent enforcement of the legal judgment. The matter was referred to king James I, whose lawyers upheld the power of the Chancellor.

Since that time, equity has dominated law in the sense that an equity court could prevent litigants from suing at law, but a law court had no power to prevent litigants from suing in equity. In essence, the equity courts claimed a supremacy of jurisdiction over the law courts with respect to certain cases.

    In this way the supremacy of equity over the common law in cases of conflict was definitely and finally established. [Walsh, Equity, at 29.]

The merger of law and equity. After 1616, equity was “supreme” over law in cases of jurisdictional conflict, but the two systems of justice were still very much distinct. By acts of Parliament in 1873 and 1875, however, the separate systems of law and equity were merged into a unity legal system. The effect of these acts was to confirm what Coke’s conflict had foreshadowed and what had in fact developed in the intervening years: that equity was not supreme merely in jurisdiction, but in substance as well. In other words, the substantive rules of equity were supreme over the substantive rules of law. The Judicature Act of 1873 ended with these words:

    `Generally in all matters not hereinbefore particularly mentioned, in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.’ [Maitland, Equity, at 16.]
    It will be observed that, by the provisions of these Acts, the principles of justice, as administered in the Court of Chancery, were made to pervade the whole mass of English jurisprudence; and that, in fact, by the rules growing out of those principles, all questions of justice in England are hereafter to be determined. [Bispham, Principles of Equity, at 22.]

American equity jurisprudence. The nature and extent of equitable powers exercised in the English Court of Chancery seem to have been adopted as the rule of practice in American equitable jurisprudence as well.

    In the federal courts [of the United States] the limits of equitable jurisdiction are to be ascertained by reference to the boundaries within which the powers of the English Court of Chancery were exercised. [Bispham, Principles of Equity, at 2-3. See also, U.S. v. American Bell Telephone Co., 128 U.S. 315 (1888), at 359-361.]

The nature of equity jurisprudence.

Having considered the history of equity jurisprudence, we may now inquire as to what the nature of that jurisprudence is. As the definition of equity suggests, equitable justice is a jurisprudence of discretionary judgment and exceptional situations. Historically, equity originated in the exercise of executive power by the English Chancellor, an officer of the king.

Equity is a jurisprudence of discretion. The basis of equity is the administration of grace, or discretion, to do justice. For equitable purposes, though, “justice” does not mean carrying out the law in any strict sense, but to do what the judge thinks is fair, regardless of the law. Consequently, equity is largely a matter of personal moral conscience freed from the restraints of law.

    [The exercise of extraordinary jurisdiction by the Chancellor] was of favor, not of right; and hence those matters in which it was displayed were called emphatically “matters to be granted as of grace.” [Bispham, Principles of Equity, at 11.]
    [T]he special relief in exceptional cases through the king’s prerogative of grace . . . later came to be called equity. [Walsh, Equity, at 2.]

Moral conscience. The extraordinary, or discretionary, jurisdiction of equity was based on the idea that it was the Chancellor’s role to speak for the conscience of the king in order for justice to be served. Modern equity is based on this same idea, namely, that justice is a matter of personal conscience, not a legal prescription.

    [T]he chancellor . . . was the king’s secretary, was the keeper of his conscience. [Bispham, Principles of Equity, at 8.]
    But equity, fundamentally, is based upon the power of the court to do what “reason and conscience” require in the particular case. This is as true today as it was in the fifteenth century . . .. [Walsh, Equity, at 43.]

Not bound by law. One of the familiar maxims of equity is that “equity follows the law.” However, the application of this maxim is itself discretionary, not obligatory. In other words, a judge need not follow the law if it would be “inequitable” to do so. And, since equity is supreme over law in both jurisdiction and substance, it is quite clear that the extent to which equity “follows” the law is discretionary.

    “In the early days there were no fixed principles upon which the Chancellors exercised their equitable jurisdiction. The rule applied depended very much upon the ideas as to right and wrong possessed by each Chancellor.” [Walsh, Equity, at 41, quoting Prof. Holdsworth.]
    [T]he customary generality of law is sacrificed in a concrete situation to the need of dispensing an individualized justice. A departure from, or relaxation of, fixed norms is deemed necessary in the interests of justice . . .. [Bodenheimer, Jurisprudence, at 249.]

An executive function. Although the English common law courts exercised their powers under the general authority of the king, they were primarily judicial in nature and function, limiting themselves to a non-discretionary judgment of the laws. England never separated the three branches of government as distinctly as we have in America, vesting judicial functions in the courts, Parliament and the monarch all at the same time, so this should be no surprise.

The Court of Chancery, however, was peculiarly executive in nature. The Chancellor purported to exercise the personal conscience of the king, that is, he wielded the power of executive discretion. As stated above, the Court of Chancery could not declare a legal judgment to be void, but it could prevent its enforcement. In essence, the Chancellor asserted the power to stay the execution of a legal judgment, which is a peculiarly executive function. The power to stay an execution of judgment is of the same nature as the power to pardon, which we recognize in America as the unique prerogative of the executive branch of government.

    [T]he power of pardoning possessed by the chief executive is essentially the power to minister equity or grace . . .. [Bodenheimer, Jurisprudence, at 251.]

The formalization of equity. In some areas of equitable jurisprudence, rules of equity became formalized through repeated usage over time. Nonetheless, these formalized rules were still based on exceptions to the rules of law. Thus, the rules of equity have never lost their character as a jurisprudence of discretionary justice.

    [A] judicial engrafting of an exception or qualification upon a previously existing rule of law may in many cases be no more than the initiation of a new normative standard to be applied to all similarly situated cases in the future. . . . [A]s soon as [equitable relief] was granted as a matter of course in other and similar cases in which the remedy at law was found inadequate, the original equitable departure from the letter of the common law became transformed into a “rule of equity jurisprudence.” [Bodenheimer, Jurisprudence, at 250.]
    In the course of time, much of what had in its inception been an “anti-legal” exercise of discretion, or “justice without law,” later formed into a body of legal rules supplementing those of the common law. [Bodenheimer, Jurisprudence, at 367.]

Individualized equity jurisprudence. Notwithstanding the formalization of some areas of equitable jurisprudence, a continuing hallmark of equity is the case-by-case method of analysis. This form of individualized equity is characterized by a “facts and circumstances” analysis where there are no formal rules, and every case is treated as exceptional.

    This capacity of moulding a decree to suit the exact exigencies of a particular case is indeed one of the most striking advantages . . . of equitable jurisprudence. [Bispham, Principles of Equity, at 10.]
    An equitable decision may be one that is neither based on an existing rule of law nor designed to inaugurate a new sequence of precedents. Its sole aim may be to do justice to the parties in a case characterized by a configuration of facts unlikely ever to be repeated in reality in the same or a similar way. [Bodenheimer, Jurisprudence, at 250-251.]
    The practical application of any of the rules in equity requires the exercise of judicial discretion. The flexibility of equity needed to adapt its relief to special cases so that hard cases may be taken outside the operation of general rules where “reason and conscience” require it, is accomplished by this exercise of judicial discretion. May we not fairly conclude that this was always true . . .? [Walsh, Equity, at 43.]

Equity is not law.

Despite the formalization of some areas of equitable jurisprudence, the theory underlying all of equity is that justice demands discretionary exceptions. Accordingly, equitable rules were not permanent, uniform and universal as were the rules of law. That is, equity has always been viewed as something distinct from law in the strict sense, and that is no less true today than in earlier times.

    Equity thus depending, essentially, upon the particular circumstances of each individual case, there can be no established rules and fixed precepts of equity laid down, without destroying its very essence, and reducing it to a positive law. [Blackstone, 1 Commentaries *61-62.]
    [T]his judicial vehicle for accomplishing justice [i.e., individualized equity], since it lacks the normative element typical for legal regulation, should clearly be distinguished from “law” in the proper sense, a distinction which Aristotle lucidly drew . . .. [Bodenheimer, Jurisprudence, at 251.]


The point of the above review of the nature and history of equity is to consider the impact equitable jurisprudence has made on modern judicial decision-making. Indeed, this impact has been substantial, not merely in the extent to which rules of equity inform modern concepts of justice, but also in the fact that many judicial opinions today employ a methodology which is primarily equitable in nature, rather than legal.

A word of disclaimer is appropriate here, because the matter should not be pressed too far. That is, no present consideration is made of the legal validity of trusts, rescission, specific performance, and other legal subject matters historically reviewed in the courts of equity. That is, the present review does not concern itself with legal subject matters at all. Rather, the exclusive focus of this review is on judicial decision-making which employs equitable methodology, irrespective of the substantive legal subject matter considered.

Conflict with law.

The concerns which motivate this examination are certain logical conflicts between the nature of equity and what we have discovered about the nature of law, namely:

Justice. The nature of law suggests that “justice” denotes carrying out the law. Equity, on the other hand, views carrying out the law as often contrary to justice. In fact, the underlying basis of equity is that an “equitable” rule of law may conflict with a “legal” rule of law, which places law in opposition to itself.

Discretion. The nature of law is such that a judge is to exercise judgment, not will. That is, a judge makes decisions because the law obligates him to do so. Equity, though, permits a judge to make decisions on the basis of personal discretion.

Uniformity. The nature of law requires that rules of justice be applied uniformly, and the failure to do so shows partiality on the part of the judge. However, equity allows for exceptions and special cases to override the application of general rules.

Equitable methodology.

“Equitable methodology” as used here means any manner of decision-making which is based on the concept of discretionary, individualized, or exceptional justice. The forms of equitable methodology which pervade modern jurisprudence are:

Facts and circumstances test. Standard judicial practice with respect to a facts and circumstances analysis regards every case as exceptional, demanding extraordinary justice which is incapable of rule formulation. Consequently, only judges can decide such matters, and only on a case by case basis.

Balancing of interests.
The idea of balancing interests is based on the concept of balancing equities. Indeed, the reason why “balancing” arose as a judicial concept was to avoid the “all-or-nothing” results of the application of the rules of the common law. Thus, balancing interests was a way to tailor remedies to the personal needs of the parties, and was just another form of facts and circumstances analysis.


The above analysis suggests the following conclusions:

Executive equity. Equity which is exhibited in the form of the pardon power and stays of execution are lawful and just when such actions are within the discretionary powers of executive officers.

Judicial equity. There are some cases in which judicial equity is appropriate, and other cases where it is not.

Although God’s law is perfect, human laws are not. Thus, judicial equity is appropriate where the judge finds that an imperfect human law, for whatever reason, fails to take into account some aspect of God’s law which bears on the case. Of necessity, then, an “exception” must be made to the human law to properly account for the applicability of God’s law. This is the best sense of judicial equity, because although an exception is made to a law, it is not discretionary, but legally necessary. Such exceptions are just because they carry out the law of God.

The reverse situation, where a human law “necessitates” the creating of an exception to God’s law is not an appropriate exercise of judicial equity. God’s law, being perfect, admits of no exceptions. Consequently, where God’s law demands one thing, the judge has no discretion to declare that the law demands something else.

The nature of law as a rule of action which is permanent, uniform and universal mitigates against any generalized form of jurisprudence which is foundationally based on exceptional circumstances and case-by-case individualized justice.

Again, no suggestion is made here [per §70, supra] that equitable subject matters, such as trusts, specific performance, etc. are biblically or historically inappropriate matters for the promulgation of legal rules and the exercise of judicial power. However, such legal rules would most appropriately originate in the legislature, which could also define the jurisdiction of the courts to hear such matters. If this were done, judges could address such equitable subject matters from the standpoint of a statutory scheme having a non-discretionary application. And, although the subject matters would be equitable historically, their adjudication would be obligatory, not discretionary. Thus, the concern addressed herein is not equitable subject matters, but equitable methodology as a vehicle for exercising judicial power.

The danger. In the words of one legal commentator, “Equity had come not to destroy the law, but to fulfil it,” an obvious allusion to Mat. 5:17. [Maitland, Equity, at 17.] Perhaps a more accurate assessment would be that equity has supplanted the law. Indeed, equity methodology has captured the field of judicial decision-making today. The end result is a jurisprudence based not on law, but on individual notions of fairness. And, if that is the case, we ought to have the intellectual honesty to recognize it for what it is. Ultimately, however, continued reliance on equity methodology as a basis for general jurisprudence will set law adrift at sea without bearings, unable to administer justice according to any fixed norms or rules.

    [T]he liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge. And law, without equity, though hard and disagreeable, is much more desirable for the public good, than equity without law; which would make every judge a legislator, and introduce most infinite confusion; as there would then be almost as many different rules of action laid down in our courts, as there are differences of capacity and sentiment in the human mind. [Blackstone, 1 Commentaries *62.]

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*   Copyright © 1993, 2010 Gerald R. Thompson. Used by permission.