We have next to speak of Equity and the Equitable, that is to say, of
the relations of Equity to Justice and the Equitable to the Just; for
when we look into the matter the two do not appear identical nor yet
different in kind; and we sometimes commend the Equitable and the man
who embodies it in his actions, so that by way of praise we commonly
transfer the term also to other acts instead of the term good, thus
showing that the more Equitable a thing is the better it is: at other
times following a certain train of reasoning we arrive at a difficulty,
in that the Equitable though distinct from the Just is yet
praiseworthy; it seems to follow either that the Just is not good or
the Equitable not Just, since they are by hypothesis different; or if
both are good then they are identical.
This is a tolerably fair statement of the difficulty which on these
grounds arises in respect of the Equitable; but, in fact, all these may
be reconciled and really involve no contradiction: for the Equitable is
Just, being also better than one form of Just, but is not better than
the Just as though it were different from it in kind: Just and
Equitable then are identical, and, both being good, the Equitable is
the better of the two.
What causes the difficulty is this; the Equitable is Just, but not the
Just which is in accordance with written law, being in fact a
correction of that kind of Just. And the account of this is, that every
law is necessarily universal while there are some things which it is
not possible to speak of rightly in any universal or general statement.
Where then there is a necessity for general statement, while a general
statement cannot apply rightly to all cases, the law takes the
generality of cases, being fully aware of the error thus involved; and
rightly too notwithstanding, because the fault is not in the law, or in
the framer of the law, but is inherent in the nature of the thing,
because the matter of all action is necessarily such.
When then the law has spoken in general terms, and there arises a case
of exception to the general rule, it is proper, in so far as the
lawgiver omits the case and by reason of his universality of statement
is wrong, to set right the omission by ruling it as the lawgiver
himself would rule were he there present, and would have provided by
law had he foreseen the case would arise. And so the Equitable is Just
but better than one form of Just; I do not mean the abstract Just but
the error which arises out of the universality of statement: and this
is the nature of the Equitable, “a correction of Law, where Law is
defective by reason of its universality.”