The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Christianity and equity


John Witte and Rafael Domingo are coediting the forthcoming Oxford Handbook of Christianity and the Law. One of the chapters will be on "Christianity and Equity," and my colleague Paul Miller and are writing it. There's a lot of terrain to cover–starting with Aristotle (yes, we know he's pre-Christian, but also formative for the later tradition), Roman law, the New Testament, scholastic theology, canon law, the Magisterial Reformation, and the English Court of Chancery. If you're interested in the ways the classical and Christian sources influenced the equity tradition, then you'll want to read it. If this is the sort of thing you like, you will like it.

Here's the link to our current draft.

The two implications we focus on are thinking of equity not just as a matter of public virtue, but also as a matter of personal virtue (for judges, lawyers, and litigants). And the value of holding on to the idea of conscience in equity. On that latter point we say this:

All this is clear from equity's institutional history and doctrinal development. Even in contemporary doctrine one finds numerous indicia of concern for conscience, including in concepts of good faith, oppression, clean hands, unconscionability, and undue influence. And yet, even though in each of these lines of doctrine there remains a connection between equity and conscience, that connection is now kept at arms-length. Rarely is it explicitly acknowledged, much less explained or elaborated. Toward conscience, judges adopt a posture of detachment.

One unfortunate effect has been the present calcification of equity. Many lawyers may point to what has been done in the name of equity, but cannot really inhabit it as a living, organic tradition. A willingness to deliberate publicly about the demands of conscience might permit a different and more fruitful perspective. It might encourage thinking about the performance of equity, of equity as something that needs to be done.

This line of thought is consistent with the Getting Into Equity piece that Paul and I recently wrote for the Notre Dame Law Review's federal courts symposium.