Aristotle RHETORIC Complete

Translated by W. Roberts.

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128 pages - You are on Page 53

Its existence partly is and partly is not intended by legislators; not intended, where they have noticed no defect in the law; intended, where find themselves unable to define things exactly, and are obliged to legislate as if that held good always which in fact only holds good usually; or where it is not easy to be complete owing to the endless possible cases presented, such as the kinds and sizes of weapons that may be used to inflict wounds-a lifetime would be too short to make out a complete list of these. If, then, a precise statement is impossible and yet legislation is necessary, the law must be expressed in wide terms; and so, if a man has no more than a finger-ring on his hand when he lifts it to strike or actually strikes another man, he is guilty of a criminal act according to the unwritten words of the law; but he is innocent really, and it is equity that declares him to be so. From this definition of equity it is plain what sort of actions, and what sort of persons, are equitable or the reverse. Equity must be applied to forgivable actions; and it must make us distinguish between criminal acts on the one hand, and errors of judgement, or misfortunes, on the other. (A 'misfortune' is an act, not due to moral badness, that has unexpected results: an 'error of judgement' is an act, also not due to moral badness, that has results that might have been expected: a 'criminal act' has results that might have been expected, but is due to moral badness, for that is the source of all actions inspired by our appetites.) Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions, nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been. It bids us remember benefits rather than injuries, and benefits received rather than benefits conferred; to be patient when we are wronged; to settle a dispute by negotiation and not by force; to prefer arbitration to motion-for an arbitrator goes by the equity of a case, a judge by the strict law, and arbitration was invented with the express purpose of securing full power for equity.

The above may be taken as a sufficient account of the nature of equity.

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