Consider the unforeseen consequences of the 1938 merger of law and equity in federal courts; later also in many states; with current people-polarization and narrow, punitive view of issues. How to move again beyond a Dark Ages of legality and vengeance and supremacism of the watcher; to balancing equities of the total context before considering solutions. Nobody thinks we can do it easily, but at least focus on the issue.
Surname coincidences aside, play justice rock, scissors, paper. Legality trumps fairness. Fairness trumps exploitation. Exploitation trumps legality.
Apply hypothetical. The stolen apple. Take an apple from a merchant without paying.
- Legality says, with eye fixed on statute, Off with the hand.
- Equity says, with eye fixed also on context, the taker took the apple to feed someone desperately hungry, it was known that I was doing this, and condoned by those who saw and who also had no problem with how I handled themand there was no reasonable alternative given resourcesity. Off with the hand? Enhhh, not so fast.
- Exploitation says, regardless of law or context, you are powerless, lowly loser, and at my self-serving command and I can command airwaves, time and brains with my words. I say -- dot, dot, dot.
Apply real issue currently bandied. Use a private server for convenience for emails in the conduct of official government business, houseclean servers after years of hearings where issue of disposition condoned.
- Legality says, with eye fixed on selected law, out with your candidacy, you untrustworthy lawbreaking scum.
- Equity says, with eye fixed on context, use of the server was no secret, was known even to those overseeing the work and condoned, never questioned in years of hearings on other matters involving emails, and after all that laches (delay in action to question to prejudice of the actor relying on the condoning,
- Exploitation says, you are powerless as to this now, and at my self-serving command. I say -- dot, dot, dot.
Who separated out legal actions from the more context-oriented equity actions, so that by now all we hear is legality, and nobody has even heard of equity, much less understands its vital role in justice. we did. In 1938, in federal courts, law and equity merged; and since then, also in most state courts. heard others. Why does that matter, when in each type of case, the first issue is, was there a bad act; and did this defendant do or cause it. That is an issue of fact. Trial away. If found to be yes, the jury moves on to the consequence. If criminal, to punish the perpetrator, one set of consequences may apply. If civil, to compel the perpetrator to make good on the damage (money to the injured party), that can also be done. Or, where money will not make the injured party whole again, are there specific acts that the defendant can be compelled to do instead.
We have lost the equitable angle and gotten stuck in the punishment idea.
If a bad act was done, we as a society have choices. Punishment for anything, says one political party. Deterrence may even mean death. Another political party may say, Look to other ways to prevent it in the future and focus on making injured parties whole again. What is needed,
Nobody thinks that will ever happen now, because the punishment mode and the polarization are too entrenched. Punishment and humiliation are too much fun for bystanders, who jeer as the tumbrel rumbles by.
That is what Nobody thinks.