Are we missing the point about ‘equity’?

Over the past few weeks, the word “equity” has almost become a pejorative.

One writer on the en website expressed his concern about the modern use of the term in this way: “In reality, every teacher (for example) has experienced privileged pupils who squandered their position, disadvantaged ones who triumphed over their circumstances, and all shades in between. Focus on equal outcomes by statistic ignores the contribution of the human will. It makes it impossible to praise the successful or chide the failure, because everything is reduced to a mechanical matter of inputs and outputs.”

Yet the truth of his statement needs to be tempered with an acknowledgement that there are situations of genuine powerlessness which can’t be remedied by heartlessly demanding unassisted self-improvement. In those situations, what’s required is equity.

In a famous speech, Martin Luther King addressed this issue: “It’s all right to tell a man to lift himself by his own bootstraps, but it is cruel jest to say to a bootless man that he ought to lift himself by his own bootstraps.”

In English law, there are many cases in which the need to do equity has been readily apparent.

One such case was Thakare vs Bhusate (2020) in which Mrs Shantabai Bhusate sought a High Court judgment to overturn a previous judgment that prevented her from making a claim on her husband’s estate.

The six-month time limit for making such claims (under the Inheritance Act 1975) had expired 25 years earlier in 1992. So, in claiming relief, Mrs Bhusate was, to use the well-known saying, “throwing herself on the mercy of the court”.

To this end, the Court of Appeal had issued guidance to courts on handling such claims by stating: “The court’s discretion is unfettered but must be exercised judicially in accordance with what is right and proper.”

Indeed, it was that unfettered discretion that enabled the High Court to rule in Mrs Bhusate’s favour. In so doing, that court compassionately explained: “In the absence of an ability to pursue the claim, [the 68-year-old applicant who had limited education and limited English language skills] would be left without a home or any capital other than her limited savings and would be left to apply for housing as a homeless person” in circumstances where the “estate has not been distributed.”

In the Old Testament, there are similar cases in which divine justice, instead of demanding unvarying legal uniformity, provided merciful relief for plaintiffs. In Numbers 27, the daughters of Zelophehad (an Israelite who died without male issue during the journey through the wilderness) appealed to Moses for the custom of male-only succession to be set aside, saying: “Why should our father’s name disappear because he has no son? Give us property among our father’s relatives” (Num. 27v4).

Later on, we read of God’s equitable response that overturned that custom: “The Lord said to Moses, ‘What Zelophehad’s daughters are saying is right … Say to the Israelites, “If a man dies and leaves no son, give his inheritance to his daughter. If he has no daughter, give his inheritance to his brothers. If he has no brothers, give his inheritance to his father’s brothers. If his father had no brothers, give his inheritance to the nearest relative in his clan, that he may possess it. This is to have the force of law for the Israelites, as the Lord commanded Moses” ’ ” (Num. 27v8-10).

In the Old Testament, the Hebrew word for this compassionate exercise of divine authority that goes beyond strict legal uniformity to ensure fairness is mê-šā-rîm (translated “equity”). That word for fairness derives from its literal use to describe even terrain, such as a plain or plateau (e.g. Joshua 13v9).

Notably, in the psalms, equity is repeatedly mentioned as a key dimension of divine justice. For example, “He rules the world in righteousness and judges the peoples with equity [bə-mê-šā-rîm]” (Ps.9v8). Also, “Let my judgment come forth from Your presence; Let Your eyes look with equity [mê-šā-rîm]” (Ps.17v2). “Say among the nations, ‘The LORD reigns.’ The world is firmly established; it cannot be moved; he will judge the peoples with equity [bə-mê-šā- rîm]” (Ps. 96v10).

Furthermore, God delights in our practising equity. David prayed: “I know, my God, that you test the heart and have pleasure in uprightness [ū·mê·šā·rîm]” (1 Chron. 29v17). At the beginning of Proverbs, that book’s stated purpose is declared to be: “for receiving the instruction of wisdom, justice, and judgment, and equity [ū-mê-šā- rîm]” (Prov. 1v3).

So, despite valid concerns being expressed about the modern identity-oriented version of equity, as a Christian I am just as concerned that ever-increasing aversion towards any use of that term will result in a widespread mean-spirited demand for unvarying legal uniformity that passes itself off as “equality of opportunity”.

Indeed, we should be wary of such a complete aversion to equity because it perfectly describes the opposite, which is, “inequity”.