Some day down the road, I hope to sift all my thoughts on empathy and “wise Latinas judges” in light of Nietzsche’s wealth of insights into perspectival knowledge as a more virile knowledge than the emasculation that comes through objectivity. (Genealogy of Morals III:12) But to hold us over in the meantime, here is Joseph Orosco employing the concept of equity from Plato and Aristotle to help support Sotomayor’s view of legal interpretation:
As Plato and Aristotle understand it, equity is a kind of correction to the written law administered by real live judges.
In The Statesman, Plato writes against the idea of the law as some of kind of system of rules that can be applied like a logical proof:
“The differences of men and actions, and the endless irregular movements of human things, do not admit of any universal and simple rule. No art can lay down any rule which will last forever….”
Equity, then, is an art (or more accurately, the practical wisdom) of learning how to take into account certain details of a particular case and consider them relevant in deciding how a law applies. It is an art in the sense that it is not a codified science, but more like a knack, a practice, that seasoned practitioners know how to do.
Aristotle calls equity “justice that goes beyond the written law” and offers an example: Imagine a law that prohibits the infliction of wounds with iron weapons. X strikes Y while X is wearing an iron ring. In addition to the general assault, shouldn’t X face of charge of inflicting a wound with an iron weapon? Aristotle says this is a case for equity–learning to see the case in a wider perspective that takes into account: “not to the action itself, but to the moral purpose; not to the part, but to the whole; not to what a man is now, but to what he has been, always or generally.” Clearly, justice, according to Aristotle, can only occur if we have some sense of the people we are dealing with.
An oath is not necessarily a job description (even though federal officials can be charged with treason or high crimes for violating their oaths). But it seems that, in the case of the Supreme Court oath of office, we ought to reconsider whether we are committing judges to an unsophisticated kind of jurisprudence. We should recall Cicero who said that only “the crowd” identified law and justice with the written decree; true law has to do with reason and the wisdom that comes from experience interacting with persons in the real world.