Equity–cont’d

Continuing where I left off in equity…

As previously mentioned, equality and equity and not the same thing. Let us be clear about this. Return to the previous post on equity, and take a look at the picture – it clarifies the difference quite clearly.

However, there is a clear link between equity and ethics. We may hear this word "ethics" thrown into conversations more and more often as we pursue the path of an LLB. But what is ethics?

The branch of philosophy that investigates morality and, in particular, the varieties of thinking by which human conduct is guided and may be appraised.

(Bullock and Stallybrass, 1977, p. 214)

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Note that morality and ethics are inextricably intertwined. We will also visit and revisit morality many times in future. But here's a question that may be pertinent at this time: is it possible to have morality without religion?

Background knowledge of ethics is an important part of understanding equity more fully. The interest that ethics has in the study of equity, and a role that can be attributed to equity more generally, is given contextualisation by reference to the work of the philosopher J.L. Mackie, who states that equity can alert us to the degree to which we ought to remain mindful of our actions on behalf of others, as well as checking our own natural inclinations or spontaneous tendencies to act (Mackie, 1990, p. 106).

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So how does ethics allow us to understand equity? Well, we have to understand that "we ought to remain mindful of our actions" and "our own natural inclinations or spontaneous tendencies" (how we react emotionally), and the effect our actions and emotions have on other people, and how they in turn react to our actions/reactions. When you think about it, every situation that leads to legal action is a result of some form of human interaction in which one party is led to believe that he has been treated unfairly or suffered some form of injustice – keep in mind that this is a form of a failed relationship. This is a very personal feeling, involving at its heart, ordinary people. This is often forgotten when complexities of the law arise.

When we think of equity therefore, we must also think in terms of justice and fairness. But it is not all subjective. After all, what one person may think will "put him right" might not – and often is not – what the other party thinks, or even often the court. So there must be an objective element.

So is it necessary for the law to become involved? The answer would be, "Of course!", if only to interject that objectivity.

Why then do we have equity? While the common law – and statutory legislation – strive to bring certainty to the law, there is no "one size fits all" solution to every single instance of perceived injustice. Equity then is the flexibility that is needed to make the law "bend" sufficiently to fit any situation.

‘Equity cannot remove the force of the law, but it can moderate its impact. Equity does not break rules, but merely bends them’ [Emphasis added.] (Watt, 2012, p. 2)

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to be continued…