What Is Equity?

And why is the Right so upset about it?
Rep. Yvette Clarke (D-NY) speaks during a press conference about racial equity on Capitol Hill in Washington D.C., 4 November, 2021 (SOPA Images Limited/Alamy Stock Photo)

We live in the age of “equity,” a word suddenly on the lips of activists and politicians everywhere. We also live in an age of injustice: the murderous knee on the neck of a suffocating Black man, the systematic erasure of Uyghur Muslims in Xinjiang, lopsided pandemic fatalities among poor, marginal populations. As we come to recognize how our own laws and investments can encourage such inhumanity, calls for “equity” continue to grow across contemporary society, from the boardroom to the classroom.

By the numbers, the notion of “equity” has become more prominent in our cultural lexicon during these past few years. According to statistics compiled by Google, the phrase “Diversity, Equity, and Inclusion” was practically nonexistent in search-engine queries until about 2014, ballooning in 2020 alongside the twin crises of the pandemic and the George Floyd protests. And as Harvard Law Professor Martha Minow points out in a recent article in the American Journal of Law and Equality, political leaders have increasingly embraced this term in their talking points. Minow points to its appearance in President Biden’s executive orders and in legal protections for Americans with disabilities. One hears it in the speeches of Black Lives Matter activists and in White House press briefings.

This ascent of “equity” as our culture’s ethical North Star, however, has provoked some backlash across the political spectrum. In 2020, the socialist magazine Jacobin published stinging criticism of anti-racist workplace trainings, on the grounds that they “allow employers to consolidate their power over employees under a veneer of social justice.” These workshops, Jacobin contends, “mostly function as a form of legal protection for employers from potential discrimination lawsuits.” Zeeshan Aleem recently discussed a perfect example of this kind of corporate cynicism in a column for MSNBC’s website. The outdoor retailer REI was cloaking its union-busting propaganda in the language of equity initiatives, “signaling that it’s on the right side of things and should be trusted while offering zero concessions” to exploited employees.

But the political Right is home to the most vociferous critics of our cultural and political turn toward the language of equity. In National Review, Christopher Caldwell warns that we “might call equity a no-excuses imperative to eliminate all collective racial inequalities.” Rather than see equity as “a new name for something that Americans have been arguing about for two or three generations”—the equal treatment of minority groups and the expansion of civil rights—Caldwell and others argue that “the equity movement is radically new.” More specifically, Caldwell claims that “equity is derived from so-called critical race theory,” and warns that calls for equity constitute “an invisible legal revolution.”

The upward slope of Google’s statistical graphs, the proliferation of Robin DiAngelo–style corporate training, Caldwell’s nod to vanguard frameworks of legal academia—these all suggest that there is indeed something “radically new” about equity as an ethical and legal concept. But this suggestion could not be further from the truth: “equity” is in fact one of the oldest principles of Western ethics, standing far above our moment of degraded partisan politics. We impoverish our understanding of it by consulting only the last two decades rather than the last two millennia. Hardly some novel “legal revolution,” the notion of equity has always set before us the perennial challenge of doing both what is lawful and what is right.
 

Hardly some novel “legal revolution,” the notion of equity has always set before us the perennial challenge of doing both what is lawful and what is right.

Making sense of today’s prevailing misunderstandings of equity will be easier if we excavate its origins, both as a matter of American legal culture and as a principle of ethics. First and foremost, it is simply untrue that “equity is derived from so-called critical race theory.” Critical race theory, a set of ideas taught primarily in law schools, has existed for only a few decades, but even if we adopt a looser understanding of this label, we still run into historical impossibilities. Christopher Rufo, a leader of the Right’s crusade to outlaw free discussion of race in classrooms, contends that “critical race theory is…built on the intellectual framework of identity-based Marxism.” He claims that leftist activists hide their pernicious agenda by deploying “euphemisms” like “equity.”

If we follow Rufo’s suggestion that equity-based ethical thought has its roots not in the most recent trends of legal scholarship but instead in “Marxism”—whose eponymous founder lived in the 1800s—we’re still off by about two thousand years. A brief historical survey will make this timeline clear. In the limited domain of English literature, the word is practically as old as the language itself: it appears as early as the fourteenth century, in the work of Chaucer and in Piers Plowman. And according to the Oxford English Dictionary, “equity” has always carried the meaning of “fairness” and “even-handedness.” It has never had anything to do with seizing the means of production.

But perhaps Rufo would rather disregard these general notions of equity as “evenness” and focus strictly on equity as a principle of jurisprudence. How else are we to understand the threat he thinks it poses to American political institutions? “An equity-based form of government,” he warns, “would mean the end not only of private property, but also of individual rights, equality under the law, federalism, and freedom of speech.”

There is much to say about Rufo’s catastrophizing fiction here, but let’s concentrate on his presentation of “equity” as a novel principle designed to undermine “equality under the law.” Simply put, Rufo does not understand that for millennia equity has been deployed precisely as a tool to bolster the law’s integrity. The importance of “equity” in this particularly legal sense is evident in all eras of the word’s history. In one nineteenth-century example in the Oxford English Dictionary, we find that chancellors “moderated the rigour of the law according…to equity.” Equity in this case, the OED informs us, refers to the “general principles of justice…to correct or supplement the provisions of the law,” not to overturn it.

Anglophone jurists did not invent this legal brand of “equity” but were merely giving a modern English name to an ancient concept. In one sixteenth-century example, the OED reports that “equytye” was understood to be a synonym of “epykay” or “epiky,” a word no longer used by English speakers. In another sixteenth-century text, the crucial project of “auoydyng disturbaunce in the communewealth” requires that we rely on “epiky and moderacion.” “Epiky” and its variants, it turns out, are mangled English transliterations of the Greek word ἐπιείκεια or epieikeia, a key concept from Aristotle’s Nicomachean Ethics transplanted into English prose. (Other historical attestations make this linguistic link even clearer: one example from the sixteenth century reports that “epicheia…is proprely the mynde of the lawe.”) As these several citations demonstrate, the legal idea of “equity” originated in neither twentieth-century scholarship on race nor in nineteenth-century Marxist texts. Instead, it grew out of Greek philosophical source material. Equity is not some radical academic fad; it’s one of the most ancient and canonical principles of Western ethical and legal thought.
 

What exactly does Aristotle have to say about this “epiky” that so influenced those sixteenth-century Anglophone jurists? If “equity” isn’t some Marxist plot to overthrow American institutions, what is it? And how does Aristotelian equity continue to ground our contemporary yearning for a more just world?

Etymologically, Aristotle’s idea of epieikeia combines the prefix epi, here meaning “upon” or even “in accordance with,” and eikos, meaning “likely,” “fitting,” or “suitable.” Our Greek dictionaries today recommend that we translate it as “reasonableness,” “fairness,” and yes, “equity.” (It does not mean “equality,” whose Greek root is iso, as in isosceles and isometric.) But Aristotle is not a lexicographer, and he did not write a dictionary. Instead, Aristotle introduces this idea of “reasonableness” during some extended remarks on “legal justice.” The fifth book of his Nicomachean Ethics focuses on justice generally, and there Aristotle explains how justice can mean, on the one hand, providing to people what they deserve and, on the other, rectifying imbalances. Given the litigious character of the Greek culture in which he lived, it is no surprise that Aristotle wants to situate lofty ideas about justice in the scrappy world of the courts.

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.

This ability to bend the strict language of the law—to “moderate its rigour,” as later jurists would put it—is Aristotle’s notion of epieikeia, later rendered as “epiky,” and later still as “equity.” The “equitable person,” Aristotle continues, is one “who is not a stickler for justice in the bad sense but rather tends to take a less strict view of things, even though he has the law to back him up.” In her aforementioned article on the contemporary use of “equity” in political discourse, Martha Minow echoes these Aristotelian notions: “From these historical sources, ‘equity’ involves adapting existing law to changing conditions or to unique circumstances and, often, departure from general, settled rules.” Aristotelian equity, then, sees itself as a “corrective” to a strict, literalist reading of statutes, particularly when such a reading would bring about rulings that are linguistically punctilious but ethically dubious.

Some jurists, especially those adhering to a so-called textualist approach to the law, will reject Aristotle’s advice to look to “what the lawgiver himself would have said” in unforeseen circumstances, joining critics like Jeremy Bentham, who quipped, “equity is abracadabra.” They are free to do so, of course. Contemporary ethical and legal thinkers, unlike those sixteenth-century jurists, have wisely moved past a blind deference to Aristotle, who began his Politics by proposing a theory of natural slavery. But there is something ignorant, if not dishonest, about the right-wing effort to paint “equity”—and specifically legal equity—as some pernicious invention of Marxists, vanguard professors, and leftist activists. Pundits like Rufo are welcome to go head to head with Aristotle, but they should stop pinning an idea they don’t like on a nineteenth-century German they like even less.

 

Aristotle’s treatment of legal justice is not just historical trivia, and we might even dislodge some serious misconceptions about equity if we consider his definition of the “equitable person…who is not a stickler” and who “rather tends to take a less strict view of things.” This brief portrait in the Nicomachean Ethics gives some philosophical grounding for contemporary examples of what we might call equitable behavior: the doctor who actively prioritizes vaccine distribution to overlooked minority populations, the admissions officer who contextualizes SAT scores in isolated rural communities, the judge who strays from draconian sentencing guidelines for young criminals. What makes all these actions equitable is not a specific political agenda but a general willingness to override defective rules. As Minow underscores, “The results [of equitable interpretation] can be unpredictable, subject to the views or whims of particular decision-makers,” but physicians, academics, and jurists often need to exercise their own prudential judgment—even against the strict demands of regulatory language—to do what is right.

This prudential notion of “equity” would urge us to take seriously Jacobin’s critique of the corporate world’s DEI initiatives. If, following Jacobin, we find in corporate equity programs a cynical “demand for [workers’] subservience” to the policies and protocols of their human-resources departments, all under a “veneer of social justice,” we will end up with a compliant workforce but not necessarily a fair workplace. As Aristotle advises, sometimes we need to abandon meticulous rule-following, no matter how noble our mission statements and staffing policies may be, because rules alone can never make a just world. We should not, therefore, identify bureaucratic fealty to “best practices” with the pursuit of justice, which sometimes demands “unpredictable,” but ultimately righteous, disobedience.

But since we cannot predict or guarantee those moments of equitable grace from the physician, the judge, or the coworker, we should first strive to make better, fairer laws that don’t need to be bent so often. If we bend that soft leaden rule too much, it will break. Equity comes with its fair share of hazards. Even so, its long history reminds us that, in order to uphold the law, we must correct it whenever a mechanical compliance would spell catastrophe. Jacobin might be onto something, then, when they see upper management’s demands for worker servility primarily as a talisman for averting litigation. We should expect to find rules, not equity, in a static PowerPoint slide. Only a flesh-and-blood human can choose not to be a stickler.

Published in the June 2022 issue: 

Charles McNamara is a classicist at the University of Minnesota.

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