Definition and explanation of the term ‘Equitable law, strict law’
The term ‘equitable law, strict law’ in legal science refers to a fundamental opposition between two methods of interpreting and applying the law: the so-called strict law (Lat. ius strictum) and equitable law (Lat. aequitas). While strict law insists on a consistent and literal application of statutory provisions, equitable law provides for the possibility, in special cases, to make decisions that deviate from the norm and are adapted to the circumstances of the individual case, taking aspects of justice (equity) into account.
The distinction between equitable and strict law is of historical, doctrinal, and practical significance in German and international legal systems. It raises questions about justice, legal certainty, and judicial discretion, impacting numerous fields of law, especially civil law, administrative law, and criminal law.
Historical development of the opposition
Roman law and antiquity
The roots of the distinction can already be found in ancient Roman law. While the ius civile was considered strictly formalistic, with the aequitas judicial correction mechanisms were developed, particularly through the praetor, who created a means of balancing law and justice with his own edicts.
Middle Ages and Modern Times
In the Middle Ages, equity (aequitas) was seen, in particular in canon law and natural law, as a counterbalance to rigid enforcement of laws. In modern times, the significance of equity has been shaped especially by the codifications of the 19th century and the role of the judge as applier of the law.
Strict law (ius strictum)
Essential characteristics
Strict law is characterized by the following principles:
- Primacy of legality: Application of the written law without regard to differing needs in individual cases.
- Predictability: Increased legal certainty through uniform decisions.
- Formal justice: Equal treatment of all cases according to existing norms.
Areas of application
- Statutory elements: Especially in criminal law, where the principle ‘nulla poena sine lege’ (no punishment without law) applies.
- Procedural law: Where adherence to strict formal requirements is demanded.
Limitations
Strict law can lead to hardship in individual cases, since individual circumstances are not taken into account. Therefore, there is a risk of unintended injustice in some situations.
Equitable law (aequitas)
Essential characteristics
Equitable law is based on the following principles:
- Justice in individual cases: Consideration of special circumstances in individual cases to avoid undue hardship.
- Room for interpretation: The decision-maker is granted a certain degree of discretion or interpretative leeway.
- Balancing justice: Subjective sense of justice may, within legal limits, be taken into account.
Areas of application
- Equity clauses: Statutory provisions that expressly empower judges to apply equity, e.g. § 242 BGB (good faith), § 315 BGB (determination of performance at equitable discretion).
- Administrative law: Discretionary latitude for authorities, especially in the exercise of discretion and when issuing administrative acts.
- Civil compensation: Limitation or adjustment of compensation obligations under special circumstances.
Risks and challenges
Emphasizing justice in individual cases can create a higher level of legal uncertainty, since the predictability of judicial and administrative decisions may be limited.
Practical significance in German law
In civil law
The German Civil Code (BGB) contains numerous references to the application of equity. Particularly important is the principle of good faith (§ 242 BGB), which enables courts to correct rigid statutory law in accordance with justice. Equity clauses are also found in the law relating to minors (§ 1626 BGB) and in the law of obligations.
In public law
In administrative law, the principle of proportionality is inseparable from equitable law. Authorities must always observe equity in deciding and exercising discretion. Likewise, social law frequently contains equity provisions (e.g. § 44 SGB II).
In criminal law
The Criminal Code is characterized by a strict principle of legality; nevertheless, within sentencing (§ 46 StGB), equity considerations do play a role, for example with regard to the offender’s culpability and the particular circumstances of the offense.
Relationship and distinction between equitable and strict law
Doctrinal classification
The social area of tension between these two forms of legal application persists. In each specific case, taking the wording of the law, interpretation, and applicable equity clauses into account, the correct balance must be found between statutory binding and consideration for the individual case.
Case law and development of the law
The supreme court jurisprudence in particular contributes to a continual development of the relationship between the two principles. Leading decisions clarify over time to what extent and under what circumstances considerations of equity are permissible.
Significance for legal practice
The question of whether and to what extent equitable law is applied has considerable practical consequences:
- For legal certainty: Strict law ensures predictability, while equitable law offers more flexibility.
- For justice: Equitable law can prevent hardship in individual cases.
- For legislation: When drafting laws, the legislature must decide where to expressly allow equity clauses or order strict application.
Summary
The tension between ‘equitable law, strict law’ is a fundamental part of legal practice and interpretation. While strict law emphasizes equality and legal certainty through normative binding, equitable law aims for justice in the individual case. The balance between the two principles is vital for the functioning of a modern constitutional state and is constantly being redefined by legislation, jurisprudence, and societal values. Both dogmatic and practical engagement with ‘equitable law, strict law’ therefore remains a central task in legal practice and development.
Frequently asked questions
What are the reasons in law for distinguishing between equitable law and strict law?
The distinction between equitable law and strict law serves to safeguard justice and adequacy in individual cases as well as legal certainty and predictability for society at large. Strict law follows fixed statutory requirements and offers little to no room for interpretation by the practitioner. The principles of legality and lawfulness are central, ensuring uniform and predictable decisions. By contrast, equitable law—also referred to as equity law—permits deviations from the rigid legal situation to address special circumstances in individual cases and to achieve a ‘fairer’ solution. Judges or deciding authorities are granted discretion, so that not only the wording of the law, but also considerations of fairness, justice, and objective balancing of interests flow into the decision. The distinction is particularly relevant when strict application of the law could lead to unreasonable outcomes. The existence of both categories in the legal system therefore makes possible an orientation toward both legal certainty and substantive justice for individual cases.
In which areas of law does the difference between equitable and strict law play a particularly important role?
The difference between equitable law and strict law is especially relevant in civil law and administrative law. In civil law, there are numerous provisions with elements of equity, e.g. in family law (such as maintenance or allocation of the matrimonial home), in tenancy law (residential tenancy law with regard to hardship provisions), as well as with regard to compensation when the appropriateness of performance is at issue. In administrative law, discretionary elements are often recognizable by terms like ‘may’, ‘can’, or ‘is entitled’; so-called ‘indeterminate legal terms’ such as ‘appropriate’, ‘reasonable’, or ‘urgently required’ reflect equity in law. By contrast, strict law prevails especially in criminal law, because legal certainty and predictability are of particular importance there. Even in public law, for example in the application of tax statutes, stricter regulations are typical to ensure fair and equal procedures for all involved.
What role does judicial discretion play in the application of equitable law?
Judicial discretion is a central instrument in the application of equitable law. Through open statutory wordings, courts are granted a legally sanctioned decision-making margin, allowing them to deviate from rigid application of the law in individual cases. However, this discretion is not unlimited; it is bounded by statutory framework, the highest court jurisprudence, and the principles of equity and justice. The discretion must be exercised in a factually justified, non-arbitrary way and with regard to all relevant circumstances. If exceeded or exercised incorrectly, the decision is subject to judicial review by higher courts. Ultimately, judicial discretion within the framework of equity law enables a flexible, case-specific, and just application of the law that can counteract rigid rules when they would lead to inequitable results.
Is equitable law more frequently applied in German law than strict law?
In the German legal system, strict law generally predominates, especially to ensure legal certainty, equality, and predictability. This means that the majority of provisions give practitioners clear instructions, usually with no room for discretion. Equitable law is mainly applied in specifically regulated exceptional situations—in order to ensure individual justice in a specific case or to avoid unreasonable hardship. Here too, however, it is true that the legislature deliberately and specifically provides for the application of equitable law, for instance through enabling clauses or equity clauses in certain provisions. Examples can be found in the law of obligations (e.g. § 242 BGB, ‘good faith’) or in social law regarding the reasonableness of certain measures. By comparison, however, the application of equitable law remains more the exception to the rule of strict law.
How is judicial oversight of equity-based decisions structured?
Decisions based on equity are subject to specific judicial review. Courts examine, as part of so-called discretionary review (Ermessenskontrolle), whether the decision remained within legal limits, whether all essential facts were considered, and whether there are any errors in discretion—such as misuse, excess, or failure to exercise discretion. The review takes into account that the decision-maker should be granted some latitude in judgment to fulfill the intent and purpose of the equity provision. Nevertheless, courts remain obliged to overturn or correct arbitrary, objectively unjustified, or disproportionate decisions. Decisions that violate the principle of equality or the prohibition of arbitrariness are also objected to by the courts. Judicial oversight therefore ensures that flexible solutions are possible, but not at the cost of legal certainty or in violation of broader legal principles.
What are the advantages and disadvantages of applying equitable law as compared to strict law?
A key advantage of equitable law lies in its flexibility and its focus on justice in individual cases; it allows atypical situations to be addressed appropriately and in a manner suitable to the circumstances. This enables courts to counteract undue hardship or serious disadvantages, for example in social emergencies or when there are special hardships. However, this also results in disadvantages, notably with regard to predictability and legal certainty. The possibility of deciding similar cases differently can lead to uncertainty or even unequal treatment. Furthermore, the interpretation of equity provisions carries the risk of subjectivity, which can undermine the comparability of judicial decisions. These risks are much lower under strict law, but strict law often lacks flexibility to take individual circumstances into account. The interplay of both types of law thus forms a balance between legal certainty and individual justice.
