Equality, Equity, and the Law

 It's been entertaining seeing progressives and conservatives battle over the term "equity" in recent weeks.  As used by progressives, it's an alternative to "equality"; roughly, it suggests that without "equality of outcome" assertions of of "equality of opportunity" are spurious.

Being a conservative, I find this doubtful as a blanket statement.  I am reluctant, for instance, to say that until the numbers of male and female professional mathematicians are equal (equality of outcome) men and women must not have equal opportunity to become mathematicians.  This sort of claim--a necessary corollary to the broad notion of "equity"--is risible.

But there is something that the progressives are getting at nonetheless.  It is this.  One can fall into the trap of assuming that because there are no overt legal barriers to achieving thing, the opportunities to achieve that thing are equal.  Thus, for instance, some people (generally on the right, generally on the more libertarian fringe of the right) are willing to stake out the claim that the young black man growing up in Ferguson, Missouri has the same opportunity of going to Harvard and becoming president as the young white man growing up in Great Falls, Virginia.  Such a claim is also risible.  So one can understand why progressives want to do something to address the problem.

I don't think the answer is equity, however, in part because it is being defined in an overly broad way--see the previous paragraph.

That being said, some of the conservative concern over the use of the term "equity" might be better deployed not towards scorning its use, but rather towards inquiring into what a better definition of the term might be.

*waves from DissertationLand*

Equity, in its early uses in English legal and political contexts, is derived in the main from a certain Greek word, epikeia.  One finds it in Aristotle and Thomas Aquinas respectable folks like that.  The idea, as embraced by Aristotle and the early English legal thinkers who (some directly and many indirectly) influenced the American founding was roughly that the law being necessarily full of generalities, it will not always apply to particular cases very well.  To put it another way, human laws are meant as particularizations of natural law or natural justice or (if you insist upon using the cringe-worthy word) "fairness"; but sometimes (human language and so forth being what they are) a positive law will not in fact serve the natural law but conflict with it.  For instance: the laws of France may state that stealing is a crime punishable by hard labor; but if a man is starving and "steals" a loaf of bread to feed himself or his family, he may be in technical violation of the law (depending upon how the statute is worded) but is not in fact in violation of natural law, since taking what one needs in the case of hunger is not, in fact, stealing.

In Ye Goode Olde Dayes (which of course never quite existed, but of which we used at least to have a better theory than at present) this sort of case was supposed to come before the land's supreme justice, i.e., the King.  And the King, if he was a Good King, was supposed to hear the case of Jean Valjean and say that while in legal justice Jean might be guilty, EQUITY--that is, attentiveness to the higher and more divine law of nature, before which all human laws should bow--required that Jean go free.

That is the old meaning of equity.

Here is the hitch with the modern progressive adaptation.

The whole point of equity was that it was understood as an exception to the law.  Law itself aims at the general good; equity is an exception made when the law intended for the good does not in fact in this particular instance serve the good.

If you generalize equity into a system, you are no longer talking about equity in any meaningful sense.  You have simply created another law.  That may not be a bad thing; but it is not equity.  And the idea that equity could be universalized, so that there is no need for special occasional acts of super-equity (if you will) is (pardon my use of the term again) risible.  It is the whole fault of the progressive project, however, that they think such a system is feasible, much as it is the fault of the conservative project (one I would not exchange for the other side's best virtue) to pessimistically insist that no such system is possible.

Having poured so much cold water on the modern "equity" scheme, it seems only fair that I offer an alternative.  Frankly, my answer is simple: let there be more ancient equity.  Give judges more room to be lenient--but not to be stricter--when they consider the laws too harsh.  Give employers and college admissions boards legal protection for being more diverse.  Let private institutions practice equity as they see fit; and let government bodies make it a part of their proceedings.

I am none too certain we are all that far off from this state of affairs at the present moment.  The fact that we are nevertheless very far from equality of outcome, from the earthly paradise, may suggest to some that my proposal is insufficient.  Being a conservative, I am inclined to suggest in reply that we simply wait it out and see how things are in another fifty years.  But I am neither hopeful nor afraid of being taken seriously.