Tuesday, November 11, 2008

Monateri on The Prophetic Nature of Equity

The Prophetic Nature of Equity is a new essay by Pier Giuseppe Monateri, University of Torino, School of Law. It appears in THE CONCEPT OF EQUITY, Daniela Carpi, ed. (Heidelberg, 2007). Here's the abstract:
This paper parallels the role played by Equity in English legal history with the role displayed by Prophets in relation to the Law and the Kingship in the Jewish tradition exemplified by biblical writings. From this perspective Equity performs the function of bringing to surface hidden meanings by means different from standard interpretation.
Monateri fills this in in his introduction:
In my discussion I start with a biblical episode where the prophet Nathan rebukes King David for his past behaviour. I use this episode to introduce the opposition between prophetism and kingship as a main feature of the development of biblical law, something which is still apparent in the practice of biblical readings. In my appraisal prophetism may be defined as a way of discovering deeper meanings in facts and rules, and so I suggest that the opposition between the prophets and the kings, between prophetism and the law, may parallel the opposition between equity and the law in English legal history, particularly with reference to the field of legal

In drawing this parallel I am not suggesting that prophets were performing an “equitable” activity, nor that there is something like a Law/equity distinction in the tradition of Judaism. I would rather suggest that “English” equity has some characteristics that can be better understood through reference to the biblical tradition than to the philosophical Greek tradition. In this way I try to show that if we investigate the nature of equity, we may eventually discover that some of its characteristics can be labelled as “prophetic” in the sense of the biblical tradition.

In the first section of this study I will examine a passage from a prophetic narrative to open my argument. Then in the second section I will discuss the historical co-evolution of law and equity in England to develop the idea of integrative antagonism in the third section with reference to the liturgical Jewish use of prophets and the law. So I will use this concept to cope with the problem of the equitable construction of a statute as a means to produce more than literal interpretations. Then at the very end I will contrast two models of handling the relation between law and equity.

For more, see the website of the project on Equity and the Law: the Concept of Equity in English Literature and Law.