LEGALITY WITHOUT EQUITY – AN INGENEOUS FORM OF WARFARE by Betty Luks

“Legality without equity is clearly identifiable as an ingenious form of warfare in which moral violence is cunningly substituted for physical violence without incurring any risk of retribution under common law.”  - -  Ivor Benson in “The Zionist Factor”
 
Helen Bender, daughter of the late George Bender presented a challenging and heart-rending paper at the recent ALoR’s Annual Seminar.  Helen spoke of the struggles and heartache her father experienced over a ten-year period with the Coal Seam Gas industry before finally taking his own life.
Her Facebook page reads:  In memory of the late George Bender who struggled for 10yrs against the CSG Industry and paid the ultimate sacrifice. 
Her Facebook page can be found here… https://www.facebook.com/GeorgeBender68/
 
While the struggles of George Bender seem to bear no relation to William Shakespeare’s plays, bear with me and think on these things.  In Shakespeare’s play "The Merchant of Venice", Shylock demanded ‘his pound of flesh’ from a living man, whereas in George Bender’s case, because of Queensland’s laws, the man George Bender took his own life - his whole life. 

Think on these things:
Ivor Benson notes in “The Zionist Factor,” the legal structure of Shakespeare’s play “The Merchant of Venice” is “fallacious since no system of law would permit a man to put his own life in jeopardy as one of the conditions of a contract.  The legal framework of the drama is no more real than so much stage furniture and painted scenery.  What is profoundly real is Shakespeare’s most elaborate statement of the relation of positive law to equity in the dealings of man and man….  
It is the relation of common law to equity which, more than any other aspect of law, comes into question in the quarrel between the money-lender and the merchant of Venice…”
Surely the same could be said in the quarrel between George Bender and the CSG Industry? "It is the relation of common law to equity more than any other aspect of law…"

Benson continues: 
In England it was early realised that under common law grave injury could go unredressed, to the detriment of civil order and national unity. We read in Chambers’ Encyclopaedia:
"When aggrieved persons found themselves denied a remedy in the common law courts, they petitioned the king in council for redress, and their petitions were remitted by the council to the Lord Chancellor as ‘keeper of the king's conscience’ for investigation".

Out of this original procedure there evolved “equity jurisdiction" in the Chancery Court, hardening with the passage of time into a form of jurisprudence that relies less and less on metaphysical influences like "the conscience of the king“ and increasingly on precedent, as in the common law courts.
Shakespeare handles this theme in a minor key in Act 1 where borrower and lender exchange a few words on the subject of usury, a theme to be played on a major key in the trial scene in Act 4:
 
Shylock: . . . And let me see; but hear you,
Methoughts you said you neither lend nor borrow Upon advantage.

Antonio: I do never use it.

Shylock: When Jacob grazed his uncle Laban’s sheep —
This Jacob from our holy Abram was,
As his wise mother wrought in his behalf,
The third possessor; ay, he was the third —

Antonia: And what of him? Did he take interest?

Shylock: No, not take interest, not as you would say Direct interest.
Mark what Jacob did:
When Laban and himself were compromised
That all the eanlings which were streaked and pied
Should fall as Jacob's hire, the ewes being rank,
In end of autumn turned to the rams;
And when the work of generation was
Between these woolly breeders in the act,
The skilful shepherd peeled me certain wands,
And in the doing of the deed of kind
He stuck them up before the fulsome ewes,
Who then conceiving, did in eaning time
Fall parti-coloured lambs, and those were Jacob's.
This was a way to thrive, and he was blest,
And thrift is blessing if men steal it not.
 
There we have a classic example of common law unsupported with equity, a hostile exercise of craftiness by Jacob against his uncle Laban, an injury inflicted in violation of moral law but not of common law. It is precisely the possibility of the frequent occurrence of this form of evil that explains the ‘evolution of equity law as a concept and juridical practice in all civilised nations.
 
Legality without equity is thus clearly identifiable as an ingenious form of warfare in which moral violence is cunningly substituted for physical violence without incurring any risk of retribution under common law.
 
The main theme of evil perpetrated or purposed under the protection of common law while in contravention of equity law is played out in a major key in the famous trial scene in Act 4, Scene 1, with Shylock's plea for "justice" to the Duke:
 
Shylock: I have possessed your grace of what I purpose,
And by our holy Sabbath have I sworn
To have the due and forfeit of my bond.
If you deny it, let the danger light
Upon your charter and your city's freedom!
 
This is only a small sample of Shylock’s eloquence from one of the longest and most powerful speeches in the play. The Jew is offered twice the amount borrowed by Antonio, but he will not yield:
 
Shylock: If every ducat in six thousand ducats
Were in six parts, and every part a ducat,
I would not draw them. I would have my bond.
 
Portia, having been invited by the Duke to examine Shylock’s suit and pass judgment according to the law, makes a plea for equity in one of the most moving speeches in English drama:
 
Portia: The quality of mercy is not strained,
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest,
It blesseth him that gives and him that takes.
’Tis mightiest in the mightiest, it becomes
The throned monarch better than his crown.
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway,
It is enthroned in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice by thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea,
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.
 
It should be remembered, however, that "mercy", which is the essence of Portia's plea, is only one aspect of equity, both in its broadest sense as "law written in the hearts of men" and in its narrowest sense as "equity jurisdiction" in the chancery courts, other aspects of equity being imperfectly contained in concepts like "fair dealing”, "truthfulness", "honesty", "trust", "loyalty", "honour", etc.
 
 
Two Nations with own Legal and Moral Codes
While in Shylock's speech the main emphasis is on the danger that must always attend any suspension of statutory law — "Let the danger light upon your charter and your city's freedom!" — in Portia's speech the argument is that there can be no true justice where the exercise of power is not "seasoned" with mercy. Mercy in this sense is not a softening and undermining of the law, but an exercise of sympathetic understanding which enhances the power of the law by freeing it of defects which must attend a written law that cannot take into account an infinite variety of circumstances.
 
Portia's speech makes no impression whatever on Shylock. His conscience is safe, his vengeance "consecrated" on behalf of his own community, his hardness "sacerdotal", all obedient to a law of enmity in which it is equity that calls for suspension — "Hates any man the thing he would not kill?" and again, "What, wouldst thou have a serpent sting thee twice?"
 
What we are shown in "The Merchant of Venice" is an enmity in nature, involving two nations, each with its own legal and moral code, which cannot be resolved by any mutually acceptable law; the only question to be determined is which side must win and which lose…
 
It remains, for the purposes of this introductory chapter, to enquire briefly into the psychology of the concept of equity and the innumerable other concepts with which it can be assimilated.
 
Equity, like all the others, did not originate as a concept, but only as a feeling, an instinctive prompting, what C.G. Jung has described as an ”irrational factor" deeply planted in human nature. The different concepts, like "love", "trust", "mercy", "honour", "altruism" and “chivalry” all represent one and the same feeling, coloured and modified by circumstances.
 
We refer here to the root feeling of care or concern, shared universally by all creatures that live and breathe; it is something deeply encoded in life, most often exerting its influence blindly and automatically; only in the human species is it modifiable by the intervention of conscious intelligence.
 
The root feeling of care or concern is exercised powerfully between man and his mate, by parents towards their children; thereafter with diminishing force within ever widening social circles of family, friends and community.  Within still wider circles of felt and perceived common interest, as between nations, the influence of care and concern if ephemeral and entirely at the mercy of circumstances… 
 
On the other hand, even in war, where the parties are divided only by a temporary opposition of interests, an exercise of the care feeling takes the form of chivalry, where the victor stops short of destroying his opponent, influenced often quite unconsciously by awareness of a kinship that transcends present differences.
 
The root feeling of care depends for its meaning and significance on the existence of another root feeling, its polar opposite, which likewise gives rise to a range of seemingly dissimilar concepts, like "hate", “enmity”, "danger", "antipathy", ”jealousy", “suspicion”, "distrust", etc.
 
The two are, in fact, inseparable, like the positive and negative poles in an electric circuit, the force of the one nearly always directly proportional to the force of the other — as in war or some other situation of peril, it is the danger which excites the maximum exercise of the root feeling of care in the form of self-sacrificing heroism, a pattern of behaviour that is duplicated throughout the animal kingdom.
 
This root feeling of care or concern is associated throughout nature with an awareness of varying degree of kinship, in man also with an awareness of common interest in innumerable other forms, such awareness always accentuated by an apprehension of shared danger…"
 
To better grasp ‘equity in law’ go to the following papers:
Owen Barfield:   http://www.owenbarfield.org/essays/
Understanding Equity: http://www.secondspring.co.uk/articles/Barfield%20on%20Equity.pdf
 
 
 
 

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