Reverend Dr Nicholas Sagovsky Canon Theologian
Friday, 1st October 2004
In his biography of Thomas More, Peter Ackroyd tells how the Lord Chancellor of England was once asked to right a particular wrong. A beggar-woman lost her dog, which was then adopted by Mores wife, Alice, who became fond of it. The woman discovered where the dog was and claimed it back. More was not sure she really was the owner, so he told his wife and the beggar to stand at opposite ends of his great hall. The dog was placed between them. When it was released, it immediately ran to the beggar, whereupon Alice agreed that the woman was the rightful owner, but offered to buy the dog for a piece of gold. The offer was accepted, so all parties were agreed; every one smiling to see [Mores] manner of enquiring out the truth. (The Life of Thomas More, London: Chatto and Windus, 1998, p. 290) Would that all disputes, you may be thinking, could be resolved to such general satisfaction and by such a judgment of Solomon even if it might be a bit risky to bring the cause of the dispute before the court!
More had, with typical homespun creativity, found a way of applying equity, which was his professional task as Lord Chancellor. The situation could not be resolved by recourse to the common law; what was needed was the application of prudential judgment in such a way that it went to the heart of the situation and enabled the dispute to be decisively resolved. You might even, following the reading we have just heard, say his judgment was inspired: For the Lord gives wisdom he stores up sound wisdom for the upright.
Nothing is prised in the Scriptures above wisdom, for in wisdom there is righteousness and justice and equity, all of which are qualities of God. You cant buy wisdom. It is, as we say of chocolate cake, something to die for. It comes from God and, together with righteousness, justice and equity, it is simply Gods gift.
The development in Western tradition about the application of wisdom which we call equity was influenced not only by the Scriptures but also by the best of Greek thought. Aristotles word was for equity was epieikeia, which became the Latin aequitas. In his Ethics, Aristotle discusses social justice and criminal justice, but then acknowledges there is a type of justice beyond justice: equity. Equity, he says, though just, is not legal justice, but a rectification of legal justice. Laws have to be drafted in general terms but there are particular cases where the law doesnt exactly fit the situation. Then the defect must to be rectified by deciding as the lawgiver would himself decide if he were present on the occasion, and would have been cognizant of the case in question. To decide as the lawgiver would have decided when faced with a particular case is to exercise epieikeia. Epieikeia is the Greek equivalent of wisdom.
Many of Aristotles insights were lost to the West for a thousand years. When they were rediscovered they were taken over pretty well wholesale by Christian thinkers like Aquinas. In his Summa he follows Aristotles exposition of what he calls epikeia, arguing that epikeia is itself a virtue and that its function is to moderate something to moderate the observance of the letter of the law; to make sure that the law, when applied in particular cases, produces a just outcome. Thomas More would have known Aquinass teaching on this. He would also have known that, though interpretation of the law was needed in situations of doubt, and the authority of a prince was needed where there was to be a departure from the letter of the law, in clear-cut cases non est opus interpretatione sed executione [the need is not for interpretation but for action] (ST 2a2ae,120.3). It was in this spirit he so decisively resolved the case of disputed authority over the dog.
In the more significant case of the Kings assumption of an authority More believed to belong, by divine law, to the Pope alone, he did not find room for the same creative interpretation. Rather than bend to the wind, even though encouraged to do so by the authority of a prince, he faced trial in Westminster Hall, and gave his life. He was entirely consistent: Non est opus interpretatione sed executione. More gave his life for the rule of law, and for the carefully moderated freedom of the judge to transcend the letter of the law. Let me quote Ackroyd again: As Lord Chancellor he had been charged with the application of conscience to law, but upon general and traditional principles. At his trial he [affirmed] the primacy of law itself, as it had always been understood. He embodied law all his life, and he died for it (p. 389).
The key, in the Christian tradition to which More bears witness, is that in the end justice can never be a matter of abstract principle. In the end (I use the term advisedly) it must be embodied; here on earth it takes shape through the wisdom, knowledge, conscience and responsible decision-making of committed lawyers. The integrity of this process was, More believed, something to die for. He was, so far as I am aware1, the only member of the English judiciary ever to be recognised as indeed a Christian saint.