Roger S. Fisher
Thomas More (1478-1535), the humanist scholar and practicing lawyer, describes in his Utopia (1516) an imaginary civilization where there are no lawyers and where the laws are easy for all citizens to understand. Debate over More's intention in writing the Utopia remains sharply divided, and the question whether Thomas More intended the Utopia to be a satirical criticism or a comical parody of contemporary European mores will never be resolved, given the inherent ambiguity in the way in which More presents Hythlodaeus’ account of Utopian society. But any account of More's purpose in writing the Utopia must consider how law, justice, and equity are depicted in Utopian society in comparison to More’s own views on the subject.
While much has been written on the more abstract aspects of justice in More's Utopia, and on his classical antecedents, such as Plato and Lucian, little attention has been paid to the connection between More's use of words for law (leges), justice (iustitia), and equity (aequitas) in the Utopia and in his other writings on contemporary English jurisprudence, especially in his letters and other texts that were part of his acrimonious debate with the well-regarded English legal scholar and Protestant polemicist Christopher St. Germain (1460–1540) on the nature and role of equity in the English common law and ecclesiastical courts, including the Court of Chancery, which was also known as the court of conscience. In all their writing on the subject, More and St. Germain disagreed on whether equity was external to the common law and derived from universal principles of justice in the natural law (More's view) or whether it was an unwritten principle and practice of the common law itself, making interference by the Court of Chancery in the decisions of the common law courts unnecessary (St. Germain's view).
In 1523, seven years after the publication of the Utopia, St. Germain wrote the first part of his Dialogus de fundamentis legum Anglie et de conscientia. Like More’s Utopia, St. Germain’s Dialogus also depicts a conversation between two interlocutors, a doctor of divinity and a student of the laws of England. The principles set out by the St. Germain’s doctor on how reason (ratio), conscience (conscientia) and equity (aequitas) are an inherent part of common law jurisprudence derive in part from Aristotle’s concept of epieikeia and contradict how equity is depicted More's Utopia. This paper will compare and contrast several passages on law, justice, and equity in the Utopia and the Dialogus. In these two early works, St Germain and More both say that strict adherence to law (summum ius) unmitigated by reason or equity amounts to the greatest injustice (summa iniuria), but they provide sharply different views on how a fair and just outcome to a legal dispute can be achieved. Their disagreement over the origin, nature, and role of equity in the courts was a preview of their even more acrimonious disagreement when they engaged later on in a battle of polemical pamphlets in Latin and English over the question of the relationship between the laity and the clergy.