A Virtue-Centered Account of Equity and the Rule of Law

Abstract

This essay explores the relationship between two notions, the rule of law and equity. One important ideal of western legal systems is captured by the phrase, “the rule of law,” and one interpretation of that ideal can be expressed in the proposition that the rule of law requires a law of rules.² A second legal ideal is sometimes called “equity,” and a common interpretation of the notion of equity is that legal decision makers sometimes ought to depart from the rules in order to do justice in particular cases. Given these interpretations of equity and the rule of law, the two ideals seem to be in tension. The resolution of that tension at the level of theory is one of the classic projects of jurisprudence or legal philosophy.

The rule of law, it is argued, is preferable to that of any individual.

Aristotle, Politics¹

© 2007 by the Author. An earlier version of this essay was delivered at the annual meeting of the American Society for Political and Legal Philosophy, January 2, 1991, San Antonio, Texas and published as Equity and the Rule of Law, Nomos XXXVI: The Rule of Law 120 (1994).

John E. Cribbet Professor of Law, University of Illinois College of Law, USA.