Equity vs. Justice

©2002 by Dale Franks

The New Jersey Supreme Court's decision to allow Democratic Senator Robert Toricelli to abandon his re-election bid, and to allow another person to take his place on the ballot, highlights an important and worrying conflict in American jurisprudence and politics: the conflict between justice and equity.

The Founders of the American republic had clear views on the administration of justice. One of the key principles of Enlightenment thought was the idea that there should be a clear and unambiguous standard of behavior both in public and private activities, and that it should apply equally to all members of society, irrespective of class or station. The purpose of the justice system, in this view, was to identify those standards that were embedded in the law, and to apply them impartially in all cases. This idea is most simply framed by the oft-heard quotation that we are "a government of laws, and not of men".

Justice is a process, not a result. Criminal law, for example, is entirely about justice, rather than equity. In the criminal justice system, there are well-known and transparent rules of behavior, such as the proscription against theft or murder. Individuals are judged solely by whether they have violated those rules or not, and are convicted or acquitted accordingly. Justice is less concerned with specific outcomes than it is with the impartial application of a set of rules.

The concept of equity, or fairness, has also long been enshrined in the law. In traditional thought, the idea of equity was generally limited to the consideration of matters of civil law. For example, if one was cheated in a business deal, or a contract was broken, the idea of equity was invoked to determine how a victim of such a circumstance could be made whole. Even then, however, equity was a secondary consideration to whether the rules enshrined in the law were upheld.

The central idea of the principle of equity is that, whenever possible, there should be a fairness of outcome to a dispute. In cases where, say, the obligations of a contract are ambiguous, the principle of equity can be invoked to craft a solution where both parties share equally in the advantages or disadvantages of the contract.

Equity is not, to be sure, an ignoble principle in and of itself. It is wonderfully useful in circumstances where it can be applied as a secondary consideration to ensuring the principle of justice is upheld. Unfortunately, the idea of equity has come to be applied as a substitute for justice, rather than as a subordinate consideration of it. This is a threatening trend, whose worrisome implications have become evident in the law in recent years, especially in environmental cases, the war on "Big Tobacco", and other areas of public interest law. These implications are now becoming evident in politics as well.

The problem with this trend is that it substitutes a subjective judgment about what is "fair" for an objective judgment about whether the requirements of the law have been met. Defining "fairness" can often be a tricky thing, especially in situations where there are many different parties to a dispute.

In the case of Senator Torricelli, there are a number of disputants. The State of New Jersey has an interest, because hundreds of thousands of dollars of the people's money have been spent producing ballots that are now invalid. The candidates for office from the Republican, Green, Conservative, Libertarian, and Socialist parties have spent their resources for months campaigning against a candidate who has now dropped out of the race. The Democratic Party is left without a candidate for an important political office. The voters of New Jersey have been deprived of a candidate for whom many of them voted during the primary election. In such a case, how is it possible to craft a truly "fair" decision? All of these parties have competing interests, and they cannot all be satisfied through the principle of equity.

The New Jersey Supreme Court decided that the best solution was to protect the people's interest in being able to choose between candidates of the two main parties. Using the principle of equity, the Court decided that the Democrats should be allowed to substitute a candidate.

Viewed from the perspective of justice, this decision is problematic. The state's elected legislature already addressed this question, and chose to bar the substitution of candidates within 51 or 48 days prior to the election. By resorting to the principle of equity, the decision effectively re-writes state law to eliminate the deadline. Moreover, the decision rewards the Democratic Party of New Jersey for ignoring the law. The party could have repudiated Mr. Torricelli after his unethical dealings became widely known. They could have persuaded Mr. Torricelli to withdraw from the race earlier, or organized a write-in campaign against him. They chose to do none of those things, until it became evident that Mr. Torricelli was a loser. Rather than being penalized for ignoring the rules promulgated by the legislature, they were rewarded by the Court.

This decision also highlights the paradox inherent in the use of equity as the reasoning for such decisions. Decisions made on the basis of equity are often inherently unfair. In New Jersey, the other political parties spent months campaigning successfully against Mr. Toricelli and those efforts have now been invalidated. The State of New Jersey must now reprint the official ballots. Absentee voters who no longer have time to receive and return their new ballots prior to the election have effectively been disenfranchised.

Even if one argues that "fairness" requires that the voters have a candidate from the Democratic Party on the ballot, the proper response is that there already is candidate on the ballot. He just happens to be losing. If we decide that losing candidates can be replaced prior to the election simply because they aren't winning, then our system of elections will quickly become ungovernable.

The Torricelli case is a perfect illustration of why abuse of the equity principle goes directly to the heart of our system of justice and law. Justice presumes that if the acts of the legislature are constitutional, then they create a system of universally applicable rules to which everyone must be held. By substituting the principle of equity for that of justice, the very idea of an impartial standard of behavior is denigrated.

Over the long term, this has a number of dangerous effects. First, it renders the law useless as a guide to one's behavior, because the law no longer provides an unambiguous standard, but rather an elastic guideline that can be ignored by those who can convince a judge of its "unfairness". Second, it reduces the legislature to a debating society, investing true legislative power in the hands of the courts, since judges, armed with equitable powers, can overturn any act of the legislature, whether it be constitutional or not. Third, it creates the opportunity for corruption by allowing judges to make case-by-case exemptions for the law for those who, in one way or another, please the judges. Fourth, because it concentrates on outcomes rather than processes, equity rewards parties for ignoring the rules that others follow. This, of course, amounts to penalizing those who follow the rules, by freeing those who don't from the negative consequences of their own actions. Finally, and most importantly, the cumulative effect is to reduce the public's perception of the importance of the law, and it's centrality in maintaining a free society. Under such circumstances, the law becomes politicized, and the courts are no longer viewed as an impartial institution from which justice can be obtained, but rather as a public policy slot machine from which, if one is lucky, a jackpot can be coaxed.

Indeed, in many ways, the court system is already viewed in that light by many of our fellow citizens. Every step we take towards substituting the principle of equity for the principle of justice takes us one step further from being an impartial government of laws, and one step closer to being an arbitrary government of men.

I doubt this is what the Founders had in mind.

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