Justice, law, and order

Last month, I wrote about how we all know what justice means and feels like because we all know how things fit together just right. See https://sierracountycitizen.org/justice-is-just-right/. Even though the western culture hasn’t had a history of justice, from its very beginnings centuries before the Christian era that idea linking the notion of justice to a physical feeling we all understand was embedded in the daily language westerners spoke. In Greek, the word for fitting together, two things meeting each other in a way that suits both was epieikos, which is the same word as epieikeia, likelihood, reasonableness, fairness, clemency, or equity, that is, a particular kind of legal justice, one which is moral (fair and reasonable) rather than letter bound to the rules of law. The justice I wrote about in that earlier post is the particular kind of justice that we call equity, the Greek epieikeia. It is the older form of a just, social relationship, before governments came along and created laws. Don’t be confused by this word. I am not speaking of private equity or your equity in your house (though both are related to the meaning of equality). Equity is the underlying social fabric of our relationship to each other, and its meaning of fairness, fittingness expresses how we can live together peacefully.

Our modern Anglo-American idea of justice has two faces, one equitable and fair and related to things (people) fitting just right and the other strictly legal, based on law (what previous courts have decided as precedence, common law, or on statutory law, written by legislatures). Theoretically, the two work together. Equity was thought of as a corrective to strict application of law. In England, there were two separate court systems, a law court and an equity court (called the Chancery court because the Lord Chancellor, representing the Crown, had the authority to decide questions of equity or fair justice). Some states such as New Jersey still have the dual system.

At one time, federal courts in America could functioned as courts of law and also courts of equity. As courts of equity, they often complemented state courts. However, today the two aspects of federal courts are merged. As the government became more and more legislative (law-making), equity became less a process of court procedures and more and more a principle that helped legislators create laws. The formalization of civil rights into law owes much to principles of equity.

Equity courts or courts that have the authority to consider equity cases work not by finding guilt or innocence, not by deciding on punishment, but by finding a social solution, an action which will remedy a harm that someone has suffered: that is, equity results in an order to stop doing something, to give some falsely obtain money back, to free someone illegallly or unfairly imprisoned, to restore something taken unfairly. Issues of constitutionality, of procedural errors, or of violation of rights are equity issues even when covered by laws.

It’s important today to keep in mind that equity and justice are different from law. Think about it. Laws are written in language that is general. Life is not lived by us generally but specifically. Everything we do is specific to a specific situation. The rule of law forces that particularity into orderly general formulas. The result can be totally unfair, inequitable. Furthermore, we are not perfect beings. There are really complex obstacles that prevent us from always doing the right thing. While unlawful things are sometimes deliberate, sometimes we do wrong because of ignorance, passion, poverty, bad education, or circumstantial constraints of all kinds. And laws themselves are not all necessarily just. Lawmakers are human. Equitable justice is the justice that recognizes the imperfections of this world. Equity tries to deal with those imperfections of carelessnesss, bias, and arbitrariness. If we lose the feeling of just right, the society loses a great deal.

So far, it does not seem that our president — who says that he can’t be bothered to try all the illegals he wants to deport — has much of a feeling for just rightness given that fairness would at least require that “illegals” are illegal before being deported. But our president goes further.

Our president has pushed what he calls the “Big Beautiful Bill.” The House has passed it. It includes parts of an earlier successful House bill whose purpose was to do away with equity by law. Here is a link to an article on that earlier House bill: https://www.politico.com/live-updates/2025/04/09/congress/house-passes-national-injunction-bill-00282914. That bill has gone to the Senate, where it may not fare well. But putting it into the BBB, gives it another and better chance. The BBB, which is about money, says, “No court of the United States may use appropriated funds to enforce a contempt citation for failure to comply with an injunction or temporary restraining order if no security was given when the injunction or order was issued pursuant to Federal Rule of Civil Procedure 65(c), whether issued prior to, on, or subsequent to the date of enactment of this section.”

The word “security” here means a bond that the person who asked the court for any court order must pay up front for the costs of enforcing that order since no “appropriated funds” can be used to enforce a contempt citation. Since this applies to all court orders “prior to, on, or subsequent” to this bill, there can be no enforcement of any contempt citation in the past. Equitable remedies are simply gone from the country. Anyone can be as unfair as they want, and, since the courts were the last guardians of fairness, no one can do anything about it. Whoever has the power can do whatever he or she wants without judicial interference. Here is a link to an article by the Dean of the University of California School of Law on the consequences of this passage in the BBB: https://www.justsecurity.org/113529/terrible-idea-contempt-court/.

That is how important equity is, and now it looks as if it will gone.

The government has become simply two branches, the legislative and the executive, the law-makers and the police (law and order); that is to say, there is no government but only a business which has bosses that make the rules and the power to enforce those rules by getting rid of those they allege break the rules. We are not citizens anymore. We have value only as workers and consumers to produce wealth for the bosses in a company-nation.