Equity as Spontaneous Order: Evolution of Glosses on the Common Law

By skepticlawyer

One of the requirements for entry to the University of Oxford’s BCL is provision of an essay demonstrating ‘legal scholarship’. This is the essay that I submitted to the admissions board at the Law Faculty. Long ago, Rococo Liberal asked me to write a piece on Hayek and Equity. I’d already written this piece, but it was before the examiners, and I didn’t feel comfortable sharing it. Now I can.

law-and-equity.gifThe image is a traditional one, highlighting the role of ‘equity’ in the courts. The Common Law holds the black letters. Equity holds up the scales of justice and says, you may have the law, but I have justice. Equity is that branch of the law that has its origins in Christianity, but unlike a similar development in Islamic Shar’iah, it never presumed to develop a criminal jurisdiction.

This, then, is my blending of Hayekian jurisprudence with the law of equity.

[T]he ecclesiastical natural law foundations of equity, its concerns with standards of conscience, fairness, equality and its protection of relationships of trust and confidence, as well as its discretionary approach to the grant of relief, stand in marked contrast to the more rigid formulae applied by the common law and equip it better to meet the needs of the type of liberal democratic society which has evolved in the twentieth century.

Sir Anthony Mason, former Chief Justice of Australia

I Abstract

Australia is a country where legislative solutions to social problems are very popular. ‘Someone should make a law against it’ and ‘they should do something about that’ are oft-repeated mantras on all sides of politics. They’re even commoner among ordinary citizens, who — as F A Hayek argued some sixty years ago — soon get used to authority taking personal choice out of their hands. Parties from One Nation to the Greens satisfy public demands for ‘action’ by doing ‘something’. They pass more (and more complex) laws, laws under which the rest of us are supposed to live. The idea that social ills could be cured by not legislating at all is greeted with incredulity. If government fails to legislate, it’s argued, some wrong goes unpunished, and some problem goes uncorrected.

In this paper, I argue that a unique feature of common law legal systems — their equitable jurisdiction — should be protected from legislative intervention. Equity retains crucial differences from the common law despite over 100 years of administrative fusion, differences that — due to their evolution within a polity that may now legitimately be described as ‘liberal-democratic’ — are central to the governance of such a society. If the jurisdictions are to fuse, this fusion should emerge spontaneously, as the legal system evolves over time. Fusion should not be legislated. The qualities Sir Anthony Mason attributes to equity do equip it better to meet the needs of a liberal-democratic society, not because of the natural law origins he ascribes to it but in spite of them. Modern Australia is defined by diversity, complexity and ongoing change. Equity’s discretionary application of internally consistent principles serves it well in this context.

I freely concede that these differences are due to historical development, which has allowed equity to evolve down paths different from the common law. Had history been different, equity may never have come into existence, may have been called something else, or may have emerged from within the common law. It is not that equity fails to be law — it undoubtedly is law — but that where it differs from the common law; it does so for sound epistemological reasons that have both evolved over time and stood the test of time.

Like common law, equity manifests the characteristics of a Hayekian spontaneous order. It is end-independent, general and applicable to an indefinite number of future situations. The crucial difference lies in its remedies and the circumstances that enliven its jurisdiction. Like both equity and the common law but unlike much legislation, our society is a ‘grown’ one, not one crafted to some intelligent design. To ‘force fusion’ invokes a belief that underlies much legislation and goes a long way towards explaining legislative inadequacies: the delusion that it is possible for a single mind or a small group of minds to know everything about a large, complex system and then change it accordingly.

II What is equity, and is it the same as law?

Equity is that body of rules developed by the Court of Chancery before the Judicature Acts and since then in courts exercising equitable jurisdiction. It first emerged from under the common law due to inadequacies in the latter. By the late Middle Ages, the common law had become rigid, particularly in its procedure. Justice was not available to a petitioner whose grievance fell outside the established system of writs, or who sought to bring a claim against a locally powerful defendant. Importantly, in a time when common law judges supposedly ‘declared’ the law, equity openly admitted its judges made law. At least initially, it was unencumbered by precedent and decided cases according to ‘rules of equity and good conscience’, leading to Seldon’s jest that ‘equity is a roguish thing […] they should make the standard for its measure the chancellor’s foot’.

Even once its governing precepts became more settled, equity retained characteristics (apart from its autonomous court) distinguishing it from the common law. Most notable was the discretionary nature of equitable remedies. Common law damages — expressed solely in financial terms — were awarded ‘as of right’; to win the case was to win the remedy. Equity, by contrast, engaged in a complex balancing act to determine whether providing a remedy — usually non-monetary — was appropriate.

Many jurists — including Maitland — saw Equity as a ‘gloss’ on the common law, called in aid where the latter fell short by virtue of its universality:

The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That it is impossible to make any general Law which may aptly meet with every particular Act, and not fail in some Circumstances (sic).

Owing to this supplementary nature, equity is not a complete system of law. Only when the common law proved harsh or maladapted did equity assume a role. Maitland also raised a further distinction between the two jurisdictions: absent the common law, and equity would be insufficient to govern any sort of civil society. Abolish equity, by contrast, and the common law would have limped along all right; less fairly perhaps, but ultimately successfully. ‘At every point,’ Maitland notes, ‘equity presupposed the existence of common law’.

Whether all general law rights and remedies could have evolved through a single system of courts is a moot point. Wesley Newcomb Hohfeld discusses the peculiar circumstance of Pennsylvania, which between the years 1679 and 1836 administered justice without a ‘grant’ of chancery powers. At that time, Pennsylvania was populated largely by thrifty, commercially minded Quakers and developed rapidly. Hohfeld notes that — in time — the Pennsylvanian common law courts began to develop what look suspiciously like equitable principles.

However, it’s important not to view common law and equity as ‘two rival systems’. Only rarely have the jurisdictions been in active conflict, and this (to take the best known example) because James I sought to undermine the powers of parliament and the common law courts. The King wished to preserve the Crown’s prerogative powers, and his use of a popular and skilled Lord Chancellor to this end ensured that where rules of the common law and equity conflicted, equity prevailed. Nonetheless, such a close link between equity and the Crown was not always pronounced, and cannot be presumed. In 1535, Henry VIII sought to abolish the whole law of trusts because people were using them to defraud the revenue.

Jurists have long drawn a distinction between equity and common law, a divergence that — as I have shown — is due to equity’s historical evolution. This does not mean that equity fails to be ‘law’ as traditionally defined. Hohfeld saw equity as a necessary part of law ‘in the broad sense’. It was needed, he argued, to make that law characteristic of western English speaking democracies a complete system.

Although early positivists like Jeremy Bentham were suspicious of the incremental nature of much law in common law countries, John Austin later accepted that judges had a genuine, if limited legislative role derived from the sovereign, be it parliament or the crown. H L A Hart’s sophisticated positivism accorded equity a special role historically in hard cases, where the law ‘ran out’. Even Ronald Dworkin — who denies judicial discretion — could argue that equity’s ‘weighty’ principles are essential in helping judges reach ‘right’ decisions. Sir Anthony Mason notes that equity’s broadly drafted maxims encompass a wider range of human behaviour than common law rules, underpinning equity’s capacity to ‘fit’ modern liberal democratic society.

III If equity is law, why not fuse the two?

If equity’s status as ‘law’ is not in dispute, the argument that it and the common law are now so similar that retaining a distinction between them is not useful has led to calls — both judicially and extra-judicially — for jurisdictional fusion. This latter form of fusion is contrasted with the administrative fusion effected by the Judicature Acts. By contrast, equity specialists like Patricia Loughlan argue that both jurisdictions are still developing substantive law; mix them at all and one engages in ‘fusion fallacy’.

Sir Anthony Mason — although not advocating jurisdictional fusion — points out that the Judicature Acts have allowed equity to influence the common law productively. Arguably, the latter is becoming more flexible even as equity solidifies and sets. When considering the relationship between equitable compensation and common law damages, for example, there are strong similarities now emerging between the two, and it can be difficult to draw meaningful distinctions between them.

Andrew Burrows calls on all lawyers ‘to take fusion seriously’, asserting that the historical distinction remains useful in only some areas of the law. In other areas (like Mason, he discusses the issue of damages and compensation) the distinction is unhelpful and the jurisdictions should be fused — legislatively, if necessary. Judges have also fuelled the debate; in Seager v Copydex Lord Denning treats the remedies available in both jurisdictions as a buffet, to be chosen from at will.

As a matter of evolutionary gradualism, fusion does seem to be occurring in some areas, especially in the ‘concurrent’ jurisdiction. A substantive doctrine of estoppel has evolved in Australian law. Mason points out that we have progressed a long way towards ‘recognition of an over-arching unity embracing the various classes of estoppel’, although a glance at Figure 1 highlights the gradual nature of this process. For the reasons discussed below, any fusion that does occur is best left to the incremental processes of the courts.

IV What is Spontaneous order?

F A Hayek argues that the common law (including equity) was not deliberately made; it is ‘grown’ law. It cannot be traced to a superhuman entity or design, or to some historic legislator. Hayek uses anthropology to prove his point, noting that law predates both society and legislation in all known civilizations. It is possible for a small, indigenous culture to be ruled by ‘a government of laws, and not of men’ and yet have no obvious central authority. He has some harsh words for social contract theorists, who try to pretend otherwise. Law for Hayek is a ‘spontaneous order’, both self-organising and complex.

Later theorists adduced Hayek’s ‘spontaneous order’ not from anthropology but from biology, deploying evolutionary epistemology’s key insight: human knowledge and culture are part of a continuum with biological evolution, having undergone heritable change over many generations in the same trial and error fashion. It is possible to discern selection for fitness and descent with modification within cultures, although it is important to distinguish adaptation from progress. Neither organisms nor cultures become ‘better’ in any absolute sense over time.

Hayek’s thesis posits an uncanny and generally unconscious collective intelligence working not by top-down diktat but rather in dynamically evolving arrangements. These arrangements are extremely common in nature. James Surowiecki discusses several classic studies, including schools of fish evading dolphins and giant flocks of starlings evading predatory hawks. From the outside, the cloud of birds seems to move in obedience to one mind. In fact, each starling is acting on its own, following four simple rules: ‘1) stay as close to the middle as possible; 2) stay 2 to 3 body lengths away from your neighbour; 3) do not bump into any other starling; 4) if a hawk dives at you, get out of the way’. The result is safety, and an almost magical, organic coherence of motion: unconscious wisdom.

The judges in common law countries are not always aware of each other’s reasoning, and where they are aware, are not always bound by it. Instead, they are bound by simple, end-independent rules (distinguish between ratio and obiter; apply the law to the facts in the instant case; follow precedent, but not slavishly) in the same way as the starlings. What looks like teleological, organic unity from the outside is in fact highly individualised and unguided.

Although Hayek is refreshingly non-judgmental, he accepts that societies that evolve effective, end-independent rules of just conduct ‘will tend to prevail’ over those that do not. He does not question why some cultures develop a ‘more effective order’ than others, although cultures with clearly defined property rights do tend to prosper:

That men can use their own knowledge in the pursuit of their own ends without colliding with each other only if clear boundaries can be drawn between their respective domains of free action, is the basis on which all known civilisation has grown.

For this reason, he favours abstract rules of just conduct like contract, tort and property law. Attempts to micro-manage individual outcomes, either through judicial discretion or legislation not only undermine the spontaneous order but are — due to the complexity of that order — epistemologically impossible. We cannot know everything about a large, complex and purposeless system and then change it accordingly. Hayek describes this common belief as ‘the synoptic delusion’ and demonstrates that not even polymaths can design a perfect system, although plenty — including Karl Marx — have tried.

The synoptic delusion arises due to the tendency among humanities scholars to treat all complex cultural institutions as evidence of social engineering and deliberate planning. In the sciences, by contrast, complexity is actually evidence against design. This failure to appreciate spontaneous order has led legislatures to design end-dependent laws, which usually produce unintended outcomes. Hayek discusses the spectacular failure of the post-war British Labour government’s ‘social justice’ reforms. Britain wilted under a mass of absurdly detailed regulations, civil service incompetence, shoddy goods of a kind later characteristic of the Warsaw Pact and a rampant black market. Onora O’Neill points out that attempts to render bureaucracies and institutions more accountable through extensive regulation and administrative micro-management have had precisely the opposite effect. Institutions, instead of serving abstract, universal principles now serve the regulations. This has the effect that – in the case of those bodies meant to uphold the rule of law – both law and its enforcement are undermined. She cites empirical studies demonstrating that people now trust government, lawyers and corporations less than they did 10 years ago. Further, 10 years ago, public trust had declined relative to the 10 years before that, and so on regressively until data is no longer available.

V Equity as Spontaneous Order

Although Hayek distrusts excessive judicial discretion almost as much as legislation, equity did change from an unfettered jurisdiction and open-ended discretion — with all the attendant risks to certainty and consistency in the law — to a flexible but internally consistent gloss on the common law. Even now, Mason concedes that ‘the element of uncertainty associated with a greater emphasis on good conscience will [need to be] dissipated by an increase in the number of decisions on a wide range of fact situations’. Arguably, equity is now the discretionary application of internally consistent principles, while the common law remains the fixed application of fixed principles. By moving away from what was the discretionary application of discretionary principles, equity no longer undermines the rule of law. Mason’s comment shows he trusts this process to continue.

Arguments for the legislative fusion of common law and equity involve the synoptic delusion. Legislative fusion would involve the large-scale abrogation of an evolved order and may have disastrous consequences. There is a real possibility that equity — due to its idiosyncratic development — if legislatively blended with the common law would distort the latter and make it more cumbersome to administer. Hundreds of years of subtle equity jurisprudence would be excised at a stroke, and there is no guarantee fusion would make the law either fairer or more certain. This is not to say that evolution within the spontaneous order will not produce fusion at some point in the future, as equity is subsumed into a broader category of civil obligations.

VI Legitimate expectations in a changing society

Australian society is not only complex, but also complex in nationally idiosyncratic ways. Our historic identification with ‘the fair go’ and ‘the common good’ means that we are strongly concerned with equality and have — unfortunately — acquired a penchant for trying to achieve fairness or ‘social justice’ via legislative fiat.

In Australia, legitimate expectations within the community — usually engendered by rapid social change — often clash with the need for legal certainty and consistency. The common law has always been certain. So long as society didn’t change too quickly, it was an excellent vehicle for fulfilling community expectations. However, the common law’s moral authority was undermined historically by repeated injustices. These reduced its effectiveness as a mechanism for social order. It is therefore in any society’s interest to develop laws that address as many different contingencies as possible. This is at the heart of the reasons for equity’s emergence.

Nonetheless, legal systems that seek to produce a fair result in every set of circumstances are different from legal systems that aim for fairness, but accept their rules will fail some of the time. Strangely, the latter ends up achieving more justice. The desire for perfect justice has fed the synoptic delusion in common law jurisdictions all over the world. Nonetheless, the law’s moral authority — in part due to the low status of lawyers — is too easily undermined to allow for repeated failure. To maintain public confidence in the law, we need equity’s historic concern for justice in the individual case. Any injustices that do occur should be infrequent enough to draw surprised comment.

VII But isn’t equity based on natural law?

Equity’s capacity to adapt to a changing society emerged in spite of its ecclesiastical natural law foundations, not because of them. The inflexibility of natural law — at least as derived from canon law — is demonstrated by this chilling (and recent) — statement from Douglas Kmiec, a natural lawyer operating within the same canon law tradition as many of the early Lord Chancellors:

A claim that the Constitution guarantees individuals the ‘right’ of homosexual practice would have no natural law foundation. In so far as homosexual behaviour undermines the societal interest in procreation, the stable transmission of cultural values within families, and is one of the primary ways in which the deadly HIV or AIDS virus is transmitted, a law limiting that behaviour promotes natural law by safeguarding existence and promoting health.

The last thing modern Australia needs is a legal system that attempts to order individual moral purposes. Lord Nottingham — in Denning’s view the greatest Lord Chancellor — acknowledged that the substantive content of universals changes, largely repudiating equity’s ecclesiastical origins. He developed a ‘civil and political’ definition of conscience, not a ‘natural and eternal’ one. Significantly, Nottingham’s conscience prevails today.

VIII Conclusion

Equity — like all genuinely abstract laws — ‘determine[s] nothing directly yet control[s] all positive power by tolerating only certain kinds of exercise of that power’. Nonetheless, its historical ‘conscience’ engages with modern desires for fairness and equality. For that reason alone, there is no need to engage the services of a legislator. This is not to say that legislation is inherently bad, but rather to acknowledge the vitality of Australia’s spontaneous legal order. It may yet teach us that great and just societies are not deliberately made.


  1. dover_beach
    Posted July 11, 2007 at 7:46 pm | Permalink

    Jason, re #43, yes, and those same people believe Diana was the People’s princess.

  2. Posted July 11, 2007 at 9:23 pm | Permalink

    BWS is a discreet example of the application of expert medical evidence, long a part of the criminal law. It has no origin at all in equity. Always remember that what feminists or socialists call ‘equity’ and what lawyers call ‘equity’ are two very different things.

  3. dover_beach
    Posted July 11, 2007 at 11:48 pm | Permalink

    SL, I agree with the latter sentence, nevertheless, what they latch onto is the broader meaning of equity, the origins of which go as far back as Plato, who, himself, strongly contrasted equity with law. Within this broader understanding of equity, BWS appears to me at least a means of avoiding the letter of the law. The more narrow meaning of equity in law owes its narrowness to the fact that it conflicts with the rule of law. If the broader meaning prevailed in law, then law itself would perish.

  4. Posted July 12, 2007 at 12:03 am | Permalink

    I’ve never seen it put that way, DB. Certainly no lawyer would construct equity that way, although I can imagine how a philosopher might (with an emphasis on the ‘might’). I should add that Jurisprudence is the one area of philosophy relatively unaffected by recent trends in Continental philosophy.

    When I was working at the law journal, I remember receiving a paper from an author who wanted to apply Foucault’s ‘relationships of power’ analysis to Australia’s first batch of anti-terror laws. I thought his ideas were interesting, so popped his paper into the file we set aside for peer review. Next day, I arrived at the office to discover that the Editor-in-Chief had scribbled on the abstract page: ‘we do not publish material written in Esperanto, only in English’.

    Also, the narrower meaning of equity in law is nothing to do with ‘conflict’ as such, but its different jurisdictional origins – to wit, the Court of Chancery. It is not seen to be in conflict, and hasn’t been seen in this way since the days of Lord Ellesmere.

  5. Posted July 12, 2007 at 1:09 am | Permalink

    I’m no fan of BWS or “learned helplessness”. Nor am I a fan of the provocation defence.

    As SL has said, the battered wives defence is not “Equity” in the legal sense. Equity is that branch of law which arose out of appeals to the King and which were later passed on to the Lord Chancellor and then a whole Court of Chancery developed.

    As for whether the Roundheads were right wing or left wing? It’s hard to pigeonhole them.

    The Levellers, for example, were a sect which believed that the land should belong to everyone. They also believed that men and women were equal before the eyes of God. They set up “communes”, and started digging up some nobleman’s land and trying to plant stuff on it. They certainly look “left wing” in modern terms.

    Then there were people like the Fifth Monarchy Men. They were waiting for Christ’s Second Coming. They believed that they were the Elect and that everyone else was going to frizzle in the imminent Second Coming. They stood on hills with outstretched arms waiting for Jesus to pick them up. (BTW, He didn’t come). They certainly did not believe all people were equal, and they believed that they were better than anyone else. They had more in common with the present day religious right than the left. Or perhaps they were so far left that they were fascists?

    Cromwell himself was religiously radical but socially conservative. He was a member of the landed gentry so he didn’t want people coming and digging up his garden in the name of God. He ended up persecuting some of the weirder preachers and sects which sprang up in the vacuum of the Civil War.

    He was an interesting man – he told the portrait painter to paint him “warts and all”. The English attitude to him is ambivalent. I would say he is neither regarded wholly as a hero or a villain. The Irish Catholics, on the other hand, still loathe him to this very day for his treatment of them.

  6. dover_beach
    Posted July 12, 2007 at 1:15 am | Permalink

    SL, the broader meaning of equity would, I imagine, be a commonplace in political philosophy as well as the philosophy of law, without having to conjure any dead Continental philiosophers of the 20th Century.

    Here are a two quotes, the first from Plato and the second from Isocrates: “Equity and indulgence, you know, are always infractions of the strict rule of absolute and perfect justice”, and “For they say that in cases of contract the judges were not in the habit of indulging their sense of equity but were strictly faithful to the laws; and that they did not in trying others seek to make it safe for themselves to disobey the law.”

    The conflict I’m suggesting is one of character. You might say that the peculiar genius of English law was to allow an element of flexibility into law, but to do so in such a way, namely by circumscribing it, that would not undermine the character of law itself.

  7. Posted July 12, 2007 at 1:18 am | Permalink

    Ahh yes, Drogheda, and Catholic babies drowned in the river, and disarmed men burned to death in a locked church.

  8. dover_beach
    Posted July 12, 2007 at 1:28 am | Permalink

    “As SL has said, the battered wives defence is not “Equity” in the legal sense. Equity is that branch of law which arose out of appeals to the King and which were later passed on to the Lord Chancellor and then a whole Court of Chancery developed.”

    But what was the character of those appeals to the King? And are they so different from the sort of appeals made by those defending battered wives, etc.?

    It’s curious that a branch of law developed out of appeals to the King because no other redress was available in law. That is paradoxical.

  9. Posted July 12, 2007 at 1:29 am | Permalink

    Precisely so. Not very nice, or very Christian. I think Cromwell calculated that one swift and merciless action could save more bloodshed in the long run, by horrifying the rebels so much that they stopped rebelling, but that’s no consolation for those who died. The Irish have long memories, and long hatreds.

  10. dover_beach
    Posted July 12, 2007 at 3:47 pm | Permalink

    Ok, SL, here are some detailed comments on the second section of your post, what is equity and is it the same as law?

    Your first two paragraphs establish the different character of law and equity. As you say: “it was unencumbered by precedent and decided cases according to ‘rules of equity and good conscience’ ” and “Most notable was the discretionary nature of equitable remedies.” Seldon’s jest? (or more likely acute observation of the discretionary character of equity) and Maitland’s comments simply affirm this difference. You might also note the similarity between Maitland’s and Aristotle’s understanding of equity even though they are separated by more than two millenia: The reason is that all law is universal but about some things it is not possible to make a universal statement which will be correct….And this is the nature of the equitable, a correction of law where it is defective owing to its universality.”

    Agreed. Equity is not a complete system of laws owing to the above. It fills in the ‘gaps’ of law owing to the exceptional circumstances of a particular case that are not covered by a general rule (law). Which brings me back to your opening sentence of this section, that equity is a body of rules. Are they rules or are they principles? If they are rules, how are these rules different from the rules we call law? Just a thought.

    Again, Maitland’s and Aristotle’s point suggests that they are not ‘rival’ systems, but that equity is a supplement to law. Nevertheless, Maitland’s admission that law could do without equity seems to imply not only an important difference between law and equity, but that equity is deficient in some important respects, and is therefore not law. And the introduction of the King’s Prerogative powers introduces the thought that there is a close connection between them and equity, that is been obscured by equity being placed in the hands of the Lord Chancellor and then with the Court of Chancery.

    Your next paragraph doesn’t add anything to what you’ve already said as Hohfeld just appears to repeat what Maitland said above.

    And your last paragraph in Section 2 is strange as you’ve gone from taking about equity and slipped into a discussion of judicial discretion in the common law. I’m assuming this was a means of suggesting the similarity between the common law and equity.

    Finally, I was some what struck by your comment that Dworkin denies judicial discretion; that is simply wrong. But you can be forgiven for thinking he does because he covers judicial discretion over with a patina of general principles of fairness and justice that are not explicit, authoritative decisions of any kind, but which are inferred from legal materials like preambles and constitutions, and which allow for right and wrong judicial decisions to be made by judges. You know, when the letter of the law doesn’t help, you’ve got to consider the ‘vibe’ of the document. I hope you see how judicial discretion sneaks in here through the front door. Consider the arguments that Dworkin raised against the Justices of the Supreme Court who ordered slaves captured in free states to return to their masters as the Justices were bound to by the Fugitive Slave Acts. Dworkin’s argument was that a careful reading of the Constitution would have made it obvious to the Justices that whatever the Fugitibe Slave Acts said was beside the point considering what could be squeezed out of the Constitution. Dworkin is a very cunning jurist. Which makes me think; maybe Dworkin’s grand project is an unstated attempt to fuse law with equity to the detriment of both.

    BTW, thanks SL, just the one section of your post has been an suggestive excursion for me.

  11. dover_beach
    Posted July 12, 2007 at 4:49 pm | Permalink

    Sorry, forgot to add the reference for the Aristotle quotation above, its the Nicomachean Ethics 1137b20-24.

  12. Posted July 12, 2007 at 5:24 pm | Permalink

    I think we’re starting to see the difference between jurisprudence and philosophy proper. For all that there may appear to be similarities between what you’re citing and (elements) of the equitable jurisdiction, they simply cannot be linked in this way.

    There is no sense in which Aristotle’s equity bore on that of Ellesmere; the Lord Chancellors quoted the Bible (as I’ve argued, Equity has natural law origins but has taken on Hayekian characteristics, largely through being yoked to the Common Law).

    I’m also not sure that you’re reading Dworkin correctly, either, unless you’re focussing solely on Law’s Empire.

    It was my understanding that Dworkin criticises Hart’s view that judges have a wide discretion in deciding hard cases. Rather, Dworkin insists that there is a single ‘right’ answer in even the hardest case. Judges must try to identify that answer, by developing the principles that underlie the applicable fields of existing law.

    True, Dworkin later recognized just how hard this can be, and in his subsequent work Law’s Empire, the judge’s duty is now to ‘look for the right decision’.

    According to Dworkin, principles allow judges to decide cases even where the legal rules are exhausted. While rules are ‘all or nothing’ (they either apply or they do not), principles have ‘weight’ (they demand to be weighed up in reaching a decision, but do not directly stipulate the result). Note that Hart, in his ‘Postscript’ to The Concept of Law, disputes that legal rules necessarily have the ‘all or nothing’ character that Dworkin attributes to them.

    Basically, Hart defines ‘rules’ more broadly than Dworkin, so it may be that the two are drawing a distinction without a difference – ie mere semantics.

    Dworkin posits an ideal judge, Justice Hercules, to illustrate his proposed methodology. In deciding a hard case, Hercules examines the theory that supports the relevant area of law. He develops the theory in such a way as to identify its central principles. He then works out what result in the present case would be most consistent with the weight given to those principles in the existing law.

    In this way, Hercules finds the ‘right’ answer to the case he is deciding. Importantly, he does so without considering policy (goal-oriented considerations). Dworkin thinks judges ought to leave policy to the legislature, as there might be legitimate disagreement on the relative value of different goals, instead deciding cases by reference to principle (non-goal oriented considerations).

    His ideas are socially progressive, but (strangely) like many conservative judges he views policy arguments as ‘the last refuge of a desperate advocate’.

  13. dover_beach
    Posted July 12, 2007 at 8:03 pm | Permalink

    Yes, the Lord Chancellors quoted the Bible but natural law did not have its origins in the Bible but in ancient Greece and Rome, and what the they did in quoting the Bible was supplement positive law with whatever ”law/ principle” they could discern from the Bible ( i.e. Divine Reason) which is as open to interpretation as is Nature, which is what Aristotle or Cicero had done. Yet both are varieties of natural law.

    Also, do you really think that the notion of ‘equity’ was not influenced by Platonic, Aristotlean, or Ciceronian notions at a time, both in England and on the Continent, in which classical antiquity was experiencing a major revival? I don’t mean to say that Aristotle’s or Cicero’s understanding of ‘equity’ is identical with Ellesmere or anyone elses, but that your saying it bears no relation is far too strong. I think it constituted the background out of which ‘equity’ finally emerges in the Court of Chancery.

    Regarding Dworkin, I wasn’t focussing on Law’s Empire at all. There, his opinions are even more obscured by a patina of reasonableness. What I relied on was Taking Rights Seriously, A Matter of Principle, as well as a review by Dworkin of ‘Justice Accused’ called the ‘The Law of the Slave-Catchers’ which appeared in the TLS. Here is a quote from the latter:

    “The general structure of the American Constitution presupposed a conception of individual freedom antagonistic to slavery, a conception of procedural justice that condemned the procedures established by the Fugitive Slave Acts, and a conception of federalism inconsistent with the idea that the State of Massachusetts had no power to supervise the capture of men and women within its territory. These principles were not simply the personal morality of a few judges, which they set aside in the interests of objectivity. They were rather, on this theory of what law is, more central to the law than were the particular and transistory policies of the slavery compromise.”

    The law in this case was as clear as you’re likely to encounter. It was not a ‘hard’ case and yet Dworkin thinks that the Justices erred in not presupposing all of the above and deciding this case on the basis of the above presuppositions and therefore contrary to the law as it clearly stood. The implication of the above is that the law must defer to the principles which presuppose the law and the political order they are promulgated in, if there is supposedly a conflict between the two. What these principles are of course is open to much more debate then the laws themselves will ever be, even if we admit as Aristotle or Hart do, with the indeterminancy of general rules in ‘hard’ cases. The fact that Dworkin claims that judges deciding cases in such a way is ‘right’ is a gloss. Would it be ‘right’ as a matter of law if the Justices considering the above case decided to simply ignore Article 4 of the US Constitution and the Fugitive Slave Acts on the grounds that it conflicted with what they believed was presupposed by the Constitution and the political order of the United States? This would be the end of law.

    Don’t you think it slightly curious that the principles Dworkin’s believes are presupposed by the Consitution, etc. are also his own?

    Regarding the distinction you suggest between policy arguments and principles, I don’t think it stands. Do you really think that in discovering the principles that presuppose the US Constitution, etc. Dworkin does not have an eye towards policy? Do you think it a pure yet happy coincidence that the principles he ‘discovered’ happen to reverse what the Constitution and statute clearly state in respect of fugitive slaves? Or that these same principles concur his opinions viz salvery or more recently affirmative action? All Dworkin has done is translate the discussion of policy into the idiom of principle.

    An aside, Hart once described Dworkin’s work as exhibiting a ‘Byzantine complexity’; it’s this ‘complexitiy’ which has enabled him to bamboozle so many for so long.

  14. Posted July 12, 2007 at 8:25 pm | Permalink

    The Civil Law tradition is entirely different, and although there is no history on the Continent akin to Equity in the Anglosphere, there are plenty of natural law elements. I actually think – having read your last comment – that we’re talking at cross-purposes.

    I also think that Dworkin would be quite unhappy that you’ve blown his cover, intimating that his ‘principles’ are just a back-door way of injecting ‘policy’ into judicial reasoning. That said, the US Constitution was an artefact of the legislature, which is paramount in Dworkin’s schema, and the legislature is free to use as much policy as it likes. (And Hart’s point about semantics in the rules v principles debate is also well made).

    However, from a lawyer’s perspective, there is simply no way to link feminist approaches to the law of evidence (like BWS) to the equitable doctrines developed by the Court of Chancery. The two simply do not come from the same place.

    Feminism as used in the law of evidence turns on fairly traditional principles – is it relevant? is it probative? is it prejudicial? Does its probative value outweigh its prejudicial nature? Things like BWS became a part of the criminal law not because of developments in equitable principles, but because of changes in the law of evidence, some of them judge-made, and others enacted by the legislature.

    The use of evidence of BWS came in through the cut and thrust of evidentiary argument conducted on a voir dire (in the absence of the jury), and is thus judge-made. The requirement that the Crown must proceed to prosecution in a domestic violence case including and beyond AOBH regardless of the beaten woman’s wishes (she is simply declared hostile in the witness box and cross-examined) is an innovation of the legislature.

    You may disagree with these innovations, you may agree with them. Likewise with the old standby, provocation (usually used to the benefit of male accuseds where the wife/female partner is dead). They are questions of evidence, however, not equity.

  15. dover_beach
    Posted July 12, 2007 at 8:57 pm | Permalink

    Maybe not so much at cross-purposes but about the same thing at different levels, which is not a bad thing. The sense I have is that we have something to learn from both.

    SL, if the legislature can’t engage in policy then nobody can.

    Regarding BWS, I was shooting from the hip. That BWS doesn’t come from the Court of Chancery is true, nor is it the application of equitable principles; what I was intimating was that they issue from the same dissatisfaction with positive law which is the motive behind the development of natural law incl. equity, I dare say. Think here in terms of the dispute between positive (or human) justice and natural justice.

    Forgive me, SL, i’m just thinking out aloud.

  16. Posted July 12, 2007 at 9:06 pm | Permalink

    No apology needed, DB – you’ve got me thinking about Dworkin again, something that’s very useful and that I admit I’ve avoided in the past – for exactly the reason you and Hart enumerated: he’s a terrible writer.

    I also think your point about Dworkin calling ‘policies’ by the name ‘principles’ and then pretending that every hard case has a single right answer not referable to policy (except as articulated by the legislature) is bang on the money and as useful as Hart’s point about the rules v principles ‘distinction without a difference’.

  17. dover_beach
    Posted July 12, 2007 at 9:35 pm | Permalink

    Regarding Dworkin, etc., can I heartily recommend again Shirley Letwin’s On the History of the Idea of Law:


    Yes, its horribly expensive, but a good academic library should have it. I’m so impressed by it I might just part with the requisite cash.

    Apart from asides on equity, she devotes a complete chapter to Dworkin which is incredibly good. An excellent example of a ruthless academic mauling.

  18. Posted July 12, 2007 at 9:40 pm | Permalink

    I’ll be borrowing that one from the college library, I’m afraid – a mite too dear for me. Looks excellent, though.

  19. Posted July 12, 2007 at 11:31 pm | Permalink

    DB, I’ve always thought that Lord Ellesmere was taking a little from Aristotle. Let’s compare and contrast.

    Aristotle: Equity is “a rectification of law where the law falls short by reason of its universality”. Lord Ellesmere: “The cause why there is a Chancery is for that men’s actions are so diverse and infinite that it is impossible to make any general law which may aptly meet with every particular act and not fail in some circumstance.”

    These principles do not say what the content of that rectification must be. So, although I love Equity, sometimes I disagree with the ways in which equity lawyers have intervened in the law. I still think it has a useful and important purpose though, even though some of the ways in which it has evolved may not be to my liking.

    DB, perhaps a better example for your purposes would be the wives equity in Yerkey v Jones. For the non-lawyers who are still interested and reading on, the principle is that a wife can set aside a guarantee if she can establish that she had a “lack of understanding” of the guarantee. Although I would call myself a “feminist”, I don’t like that wives equity. I was disappointed that the HC didn’t overrule it in Garcia. I think it’s stereotypical. Much better to rely on some other kind of doctrine to intervene.

    SL, I agree, Dworkin is a terrible writer. I must confess that I haven’t read him for years, but I think I’m going to have to look at some of those questions in my thesis. I’m already looking at Aristotle.

    Loughlan argues that equity has a “strong discretion” (more than one possible rule to apply) and common law has a “weak discretion” (only one rule to apply, but discretion in how to apply) using that thar Dworkin. I think that she overstates the reality somewhat. There’s plenty of inflexibility in equity.

  20. Posted July 13, 2007 at 12:36 am | Permalink

    Actually, that’s a good point LE. DB, hop onto Austlii and look up Yerkey v Jones and then Garcia (both easy searches). Both cases divide lawyers and jurisprudes terribly, and show where conservatives (‘women are poor creatures who need protecting’) and difference feminists (‘essentialists’) finish up meeting in the middle.

    It’s liberal feminists (like me and I assume LE) who always find both cases most disconcerting, as the rationale in both is remarkably similar to that motivating anti-discrimination law, except that (in addition) it pretends that women aren’t free agents who can enter into contracts.

  21. dover_beach
    Posted July 13, 2007 at 10:57 am | Permalink

    LE, thats exactly my point regarding equity. Equity was certainly given an institutional basis by the Court of Chancery, but it was always present as an idea since ancient Greece and Rome.

    Aristotle intimates a problem with equity but he never really pursued it and that is that equity is not like law which is the application of known rules but is more like a decree. This might be the source of your dissatisifaction with its occasional application, that like a decree, it appears often to be capricious.

    I will look at those cases. The sense I have from your and SL’s comments is that it falls into the same category as BWS and by this I mean that they are ingenious attempts at avoiding what the law clearly obliges, not that they fall into the same legal category. BWS does this via expert testimony which more or less argues that battered women aren’t intelligent agents while the two cases you sight do this by invoking a different idea of ‘reasonableness’ for women (having not read the cases I’m assuming it bears a similarity to what I’ve read elsewhere about feminist legal jurisprud excursions into contract law). In both cases different legal instruments are employed but for the same effect, which is to blunt the strictness of law. And this I think is the problem with equity, while it in some cases appears to supplement law, in others it may merely blunts its strictness, and in both cases the capriciousness of equity obscures the difference.

  22. Posted July 13, 2007 at 10:22 pm | Permalink

    There are many circumstances in which I think Equity’s intervention is appropriate. Take for example, the legal formalities required to create a proprietary interest. Doctrines such as Walsh v Lonsdale enable an interest to be created in equity where not all the formalities have been completed in law. The parties essentially agreed but didn’t use the right forms. The quid pro quo is that equitable proprietary interests are much easier to destroy than legal proprietary interests (and properly so, say I).

    I also think Equity has had some very valuable additions to the development of the law generally. Take the trust: a recognition that legal ownership and beneficial ownership may reside in different persons.

    There should be at least some kind of predictable guideline as to when equitable doctrines apply. I am a very big fan of litigants having a fair idea of what to expect if they go to court. As Peter Birks said, we don’t want “palm tree justice” – whatever the judge thinks is right. This leads to idiosyncratic and unpredictable decisions. And potentially, unfair decisions – it all depends on what the bias of the particular judge is.

    But that doesn’t mean that a structure has to be totally rigid. A bit of flexibility is a good thing. There has to be a balance between certainty and having the capacity to recognise exceptional circumstances. I think that is where Equity is really valuable. I don’t always agree with Equity’s opinion of exceptional circumstances (eg, the Yerkey v Jones principle, or the ridiculous decision of Louth v Diprose, where a solicitor was found to be vulnerable even though he knew perfectly well what he was doing). But I still think Equity has an important role to play. All systems have some notion that one can intervene in exceptional circumstances (even the European civil law, which uses notions of good faith in the way that Equity uses notions of unconscionability).

  23. Posted July 14, 2007 at 2:32 am | Permalink

    # 55 No wonder the Irish hated Cromwell, he banned Sunday cricket and in Ireland he had all the cricket bats and balls confiscated and burned by the common hangman.


  24. Posted July 14, 2007 at 1:20 pm | Permalink

    Well that’s just rude. I guess that’s what being a Puritan is all about.

  25. Posted July 14, 2007 at 7:39 pm | Permalink

    Okay, closing the theatres I can sort of understand, but destroying peoples’ opportunity to play the greatest and most subtle game devised by man really takes the bloody biscuit. It’s the potention for an undefined outcome he didn’t like, I’ll bet.

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