John Witte is coediting with Rafael Domingo the forthcoming Oxford Handbook of Christianity and the Law. Paul Miller and I are writing one of the chapters on “Christianity and Equity.” You have a lot of ground to cover. There is Aristotle (yes we know that he was pre-Christian but also formed the later tradition), Roman Law, New Testament, Scholastic Theology, Magisterial Reformation, English Court of Chancery, and canon law. It will interest you to see how Christian and classical sources affected the equity tradition. You will love it if this is what you are looking for.
You can find the latest draft here.
These two implications are important because equity is not just a matter for public virtue. It can also be considered a matter personal virtue. This applies to judges, lawyers, litigants, etc. It is important to keep the concept of conscience in equity. This is what we have to say about the latter:
This is evident from the institutional history of equity and its doctrinal evolution. Many indicia exist in modern doctrine that show concern for conscience. These include concepts such as good faith, oppression and clean hands. Even though there is a link between equity and conscience in all these doctrines, it has been kept to an arms length. This connection is seldom acknowledged. Judges adopt a detachment posture in order to be more conscious.
Unfortunately, equity is now being calcified. Lawyers may be able to point out the wrongdoings committed in equity’s name but they are not able to truly live within it. It might be possible to see things from a new and better perspective if you are willing to debate the issues of conscience in public. You might be encouraged to reflect on the PerformanceThe concept of equity refers to something that must be done.
This thought pattern is compatible with Getting Into EquityI and Paul wrote this piece for Notre Dame Law Review’s Federal Courts Symposium.