fairness doctrines

In the June issue of Commonweal, I document the rise of “equity” as a central term of contemporary politics and culture. Even if equity seems to have emerged as some novel notion in our political lexicon, it’s in fact one of the oldest, most canonical ideas in Western legal and ethical thinking. More specifically, it stems from the “ability to bend the strict language of the law” in Aristotle’s Nicomachean Ethics, and despite claims from pundits like Christopher Rufo, it has nothing to do with “identity-based Marxism”:

In short, Aristotle praises the rule of law—whereby our actions are regulated according to statutes rather than the whims of despots—but he worries that laws alone might sometimes work unfairly. At one point, he writes, “whenever the law makes a universal pronouncement, but things turn out in a particular case contrary to the ‘universal’ rule,” it is up to us to “rectify the deficiency by reference to what the lawgiver himself would have said if he had been there and, if he had known about the case, would have laid down in law.” In such an exceptional case, Aristotle wants us to attend to what we would call the “spirit of the law” rather than the “letter of the law,” and drawing on a memorable image, he urges us to think of “the soft, leaden rule used by the builders in Lesbos: the rule adapts itself to the configuration of the stone, instead of staying the same shape.” He hopes that in a similar way, a “decree adapts itself to actual events.” In Aristotle’s view, rules were made to be bent.

Legal equity, in other words, is not driven by “a specific political agenda but a general willingness to override defective rules,” and this ethical framework has carried that meaning for about 2,500 years. Read the rest at Commonweal‘s site.