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.
The 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.
75 Comments
I love it, I love it. Well of course I do.
Well you and your peppermint flavoured resulting trusts - you would!
SL,
I was reading “The Tyrannicide Brief” by Geoffrey Robertson recently, about John Cooke the lawyer that prosecuted Charles I. The book is a powerful (at least to my lay-person’s eyes) discussion of the law at that time. One of the recurring themes in that one was that John Cooke wanted to achieve fusion - and Robertson’s seeming agreement with him.
Have you read the book and, if you have, what is your take on it?
To a legal outsider it sounds like several generally incompatible but very hopeful potential lovers trying to get eachother into bed.
Haven’t read the book, but - as the article sets out - I’m opposed to legislative fusion. If it occurs incrementally, however, that may be a different thing.
Not that evolved law is always best, however (Old System Title, for example), but on the whole, the motivations for legislation are very different from the motivations for evolutionary development of the law, and the latter are more effective in a Hayekian sense (more efficient, for example).
However, I’m not even completely persuaded of the necessity for the supremacy of parliament. Of course, my ideas depend heavily on a judiciary and legal profession that is (a) fiercely independent but also (b) thoroughly meritocratic. It hasn’t always been, and arguably still isn’t.
“We cannot know everything about a large, complex and purposeless system and then change it accordingly.”
Most people have no understanding of how commonly used items work eg water, electricity (define “electricity”), automatic gearboxes, electronic fuel injection etc yet use them daily, with success.
You dont have to know how something works, your only concern is with its performance.
Voters today are confronted by a wide range of complex technical issues and they are supposed to be properly informed of these issues before electing their representative. Politicians can be called on to rule on complex issues based whilst displaying the same ignorance, after all they do represent the electorate.
Partisan politics creeps in everywhere and it seems everybody has an opinion on just about everything, often based on the flimsiest of evidence and most times without any real knowledge.
Time voters think “smaller govt” and left everyday market decisions to the market.
It’s like the Mencken gag: ‘to every complex problem there is a simple solution, and it’s always wrong’. The dysfunctionality in Aboriginal communities is a classic example of the type.
I am so looking forward to reading your essay!!
However, I am going to save it for the weekend, when I have the spare time to really savour it
Thanks for the acknowledgemnt in your intro.
PS: The Stamp duty ramifications of those resulting trusts are such fun.
PPS
Are you goin back to the Brisbane Bar after Oxford?
SL
OK, I couldn’t wait
So I misseed the Partners’ meeeting at lunch-time, and read your essay instead. Wonderful. 11 out of 10.
I’d love to see your thoughts on the relationship to Statute law to other two.
I gave it to my kid whos’doing 3rd year law, SL. He was pretty awestruck by it.
I can’t understand why he walked outta the room when I told him I hope he could write 30% as good as you can!!!!
RL, didn’t mean to bugger up work stuff for you - sorry about that. Not sure what my Bar movements will be after Oxford, but whatever I do, I will leat Cat readers know and keep everyone posted. Also you’re welcome to visit me at Oxford if you’re in the UK.
I’m working on Hayekian approaches to legislative drafting at Oxford, so hope there’ll be an essay on that for Cat readers some time in the next few months.
Skeptic - I’ve only read this once thru so I can’t really make a detailed comment. Some things did occur to me.
The Australian legal order has obviously derived from the British legal system which is a spontaneous legal order but I wonder how much of the spontaneity of this system has been affected by the penal history of this country.
For example you make reference both to the egalitarian culture pervasive here and the automatic recourse to legislative solutions. I can see this has being a legacy of convict days.
The original Australian ‘class system’ was a four-fold division: there was the governor, the marines, the convicts and in a legal but not economic sense, the Eora tribespeople. The convicts were both the majority and the only people who didn’t have rights. One of the first tasks of the colony was the building of huts. The governor’s hut came first, then the officers, the enlisted and finally the convicts.
However the colony floundered and starvation set in. I’d argue that this proved a massive equalizer in embyonic Australian society. In the face of Nature’s scorn everyone was reduced to the same level. Privilege could not be afforded anymore etc etc. I can’t be certain but I believe this may have had a profound effect in breaking down the standard British culture with its rigid heirarchy.
Couple that with the fact that Australia was more or less a gulag. Most of the Europeans who settled this land had no rights as such. And authority always erred on the side of restraint. For example there were convicts who had served their seven year terms very shortly after arrival (having been incarcerated on the hulks in England for a good number of years). However they were kept in bondage because the paperwork demonstrating their free status had not arrived.
I believe this penal culture also had a profound effect on the British traditon (which had tended toward liberty). Australian came to defer to the government for economic decisions and questions of social justice.
These attributes of extreme adversity in the face of hostile Nature and the absolute dominance of isolated penal government I think underpin our legal/political culture which as you say tends toward a regulatory solution for everything on thr basis of egalitarianism.
I’m not sure of your explanation (although it’s certainly a thought-provoking one), but there is no doubt that Australia’s first recourse is very often to the regulator.
Counsel with many years experience have often pointed out to me that - in many respects - Australia has abandoned the Common Law in favour of legislation, with the result that the United States has a much more robust evolutionary legal tradition than Australia or Canada. Even the UK has caught the ‘let’s write a law’ bug, undermining much of the power of their earlier conventions.
Much of this is to do with Tony Blair’s government, which has taken nanny-statism to quite extraordinary lengths (google ‘ASBO’ and you’ll get some sense of this, at least in the criminal jurisdiction).
I hope that a Conservative government with David Cameron at the helm will be less inclined to meddle, but there’s no way of knowing for sure. I don’t know much about him, apart from the fact that he studied at the same Oxford college as me!
You’re obviously pretty excited about Oxford Helen good hunting and enjoy yourself.
My ‘explanation’ is nothing of the kind. I’ve been researching early Oz history for a project of mine for a while and it seems to me that both our egalitarian ethos and the (perhaps contradictory) authoritarian default are a legacy of those days. Also perhaps our ‘inferiority complex’ style of racism given that the Eora originally had rights that the convicts didn’t.
But our default to legislative solutions is embedded. I’m often frustrated in conversations with left-wing friends particularly those who’re Greens members because they’re always generating a statuatory solution to problems I think best solved by dialogue and inclusion in the private realm.
Looks very interesting SL. I’m currently reading Shirley Letwin’s On the History of the Idea of Law (highly recommended, BTW) so a post on the law and equity was timely. I’ve only really skimmed the post but a few things caught my eye. Firstly, the natural law tradition seeks to ground law in Reason, so it includes philosophers/ jurists as diverse as Plato, Aristotle, Cicero, and Locke and is not merely ecclesiastical law Secondly, the problem, I think, with natural law is not its inflexibility, but the opposite, its flexibility; there are many and diverse interpretations of natural law because human reason is so diverse. Thirdly, the tension, as I see it, between the common law tradition (incl. statute law) and equity is that the former is written law and the latter is unwritten law (this is mitigated by the development of the law of equity), which is something of an oxymoron, if you do not abide natural law arguments as I don’t. Fourthly, and it follows from the above, the fact that equity is unwritten law appears to give judges a legislative role rather than an adjudicative role in resolving legal disputes. Fifthly, if equity is unwritten law, and say, the defendent has in fact fulfilled his or her common law obligations, what precisely is the dispute about? Doesn’t equity in some way conflict with the rule of law?
I could go on but I would probably raise things you haven’t discussed or alternatively discussed and answered above. I’ll get a chance to read it on Thursday though. Well done, SL.
Great stuff!
#7 on the supremacy of Parliament , you are well advised to be skeptical, the notion of Parliamentary Sovereignty is really dangerous, as though a majority of people in the House at the time are entitled to pass any damn law that they like.
On the modernisation of tribal law, at a conference some years ago there was talk of adjusting some Aboriginal practices like the rule that a dwelling had to be vacated for (say) five years after someonen died in it.That was ok when they were nomads and the dwelling was a bark humpy but with permanent housng, vacating for years mean overcrowding some other house and leaving the original to be vandalised. The idea was to reduce the period to (say) five days so the law could be honoured in principle without creating serious problems. Other examples were cited but they slip my mind and I don’t recall any more that has been said on the topic.
On Blair’s New Labour nanny-statism, it is now apparent that Thatcherism saved the nation from going broke by gettng the trade unions under the rule of law and exposing more of the economy to market forces. That could be done in a few years of office but it would have taken decades to change the course of the Titanic of interventionism that dominates the thinking of the “political classes” in all parties and the intelligentsia and opinion formers at large.
I didn’t know that, Adrien. Curious, yet unsurprising. Arthur Phillip really was something of an ‘odd fellow’.
SL sez:
“If the jurisdictions are to fuse, this fusion should emerge spontaneously, as the legal system evolves over time. Fusion should not be legislated.”
and then she sez:
“Counsel with many years experience have often pointed out to me that - in many respects - Australia has abandoned the Common Law in favour of legislation, with the result that the United States has a much more robust evolutionary legal tradition than Australia or Canada.”
But FDR “legislatively fused” law and equity in the USA 70 years ago with a stroke of the pen… see Rule 2 of the Federal Rules of Civil Procedure: “There shall be one form of action to be known as “civil action”.”
is there a single jurisdiction in the us (state or federal) that has separate courts of law and equity? I don’t think so; maybe Louisiana. 17th century Pennsylvania doesn’t count.
so if the USA - the repository of the greatest body of legal and equitable jurisprudence and precedent - is an example of anything, it’s an example of “legislatively fused” jurisdictions being compatible with (as SL puts it) a “robust evolutionary legal tradition”.
I am confused, and it is possible that my intellect is just quite dim when compared to our brilliant SL.
other possibility is that SL has just confused herself - perhaps she failed to head Holmes’ warning (per Posner) of “the pitfalls of misunderstanding law by taking its moral vocabulary too seriously”
Or as Holmes himself put it:
“For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.”
interestingly, in all of SL’s various lengthy discussions of jurisprudence and legal history, she has never once (AFAIK) mentioned legal pragmatism, Holmes or Posner…. Posner of course has a different explanation for the greater reliance in USA than UK/AUstralia on legal evolution, one that relies on a fairly boring and straightforward comparative analysis of the separation of powers under the US’ tri-partite system of government and UK/Australia’s responsible government. Not as romantic or swish sounding as SL’s effervescent discussion of Roman and ecclesiastical law, but it works for me…
“I am confused, and it is possible that my intellect is just quite dim when compared to our brilliant SL.”
I’ll say…. certainly angrier.
Battery Pack, have you met MichaelB? You two guys would really hit it off.
There’s a difference between the Judicature Acts or Rule 2 (which allows for civil actions to be commenced in any court of superior jurisdiction) and fusion of the substantive content of the two approaches.
Historically, when they were first set up, the New South Wales colonial courts did not administer equity. I think it was only introduced into Australian law by s 11 of the Australian Courts Act 1828 (Imp). Perhaps this explains why we prefer legislative responses?
I do love Equity. I like the fact it has the potential to be very flexible.
I can see why Equity would appeal to a Hayekian - there is no need to intervene unless there is a potential injustice. Aristotle said it better than me: Equity is “a rectification of law where the law falls short by reason of its universality.â€
I don’t like the way our current High Court views Equity. They have a very inflexible and rigid concept, which seems to me to be against the very essence of Equity. Why not just let it evolve freely and not worry too much about the history of what Chancellors did in 1850? I can’t stand this whole fusion fallacy notion. No, I don’t want to “force” fusion by legislation, but I agree with SL - just let it happen naturally.
I read The Tyrannicide Brief and I thought it was exceptional and tragic. I have an obsession with the English Civil War period, so it catered to two of my obsessions: law and that period of history.
Mmm, I’d better go to bed. But what a fun discussion.
You might also notice, LE and SL, that the idea of equity is a darling of feminist jurisprudence, with some feminist jurists even going so far as to prefer seeing equity replace, and not merely ‘fuse’ with, the common law tradition.
Re #21:
Aren’t courts of equity called courts of chancery in the United States? Therefore, Mississippi, Delaware and Tennessee are three US state jurisdictions that have separate courts.
Recently, I ran a case which turned upon whether a certain statutory exemption applied to my client. To obtain this exemption, the taxpayer had to prove a trust existed. The Courtof course would construe the words of the relevant provision using common law principles of interpretation.
Thus all three types of law were involved in the one matter. Could this be fusion? What I would submit is that what we have here is three different sets of rules that can be used together, but do not have to be. This is not fusion of the rules, only a fusion of the venue in which they can be applied.
Interesting, but not possible - as LE and RL will no doubt confirm, Equity is not a complete system of law, but a discreet set of principles that has no bailiwick across many areas of law (the criminal law being the most obvious example, but there are many others). Its role - to go back to the Earl of Oxford’s Case (the Grandaddy of the equitable jurisdiction), it is there ‘to soften and mollify the rigour of the common law’.
“I read The Tyrannicide Brief and I thought it was exceptional and tragic.”
Word up. What a cracking read. Shame about the endnotes, which contained some fascinating asides and had me needing 2 bookmarks, but I’m prepared to forgive him.
Not for scoring Nigella though.
Can’t say that I am interested in reading the Tyrannicide Brief. The reviews I read condemned it as a load of lefty rubbish which tries to justify a patently illegal and immoral act, the execution of Charles I.
After my experience with reviewers, I’m inclined to disbelieve them (and also to admit that I hate reviewing myself). I’ll give it a read, now others have mentioned it. Also, a solicitor friend in Brisbane gave it a good wrap, and he’s hardly a lefty - he once worked for the Republican Party in the US.
FDB says:
“I read The Tyrannicide Brief and I thought it was exceptional and tragic.â€
Word up. What a cracking read.
————————
RL says:
Can’t say that I am interested in reading the Tyrannicide Brief. The reviews I read condemned it as a load of lefty rubbish
Call me consistent, but I’m going with RL’s take.
Oliver Cromwell was a lefty? That’s news to me, RL. It’s too bad the UK never did a French Revolution and slaughter the whole lot of them.
I don’t think it’d be up your alley anyway, JC. Big words, hardly any pictures.
Jason - LOL.
Care to tell us what was good about Chucky 1 RL? I mean, apart from being given to the people by God to rule as he saw fit.
Reviews, not directly on topic but reviewers will do their readers a great service if they at least indicate the major argument of the book and find something of value in it (maybe not the major argument, but some new evidence or an interesting point of view), along with relevant critical comments. Relevant means not just slagging the author and John Howard but saying what is actually wrong with some of the arguments and evidence presented in the book.
Dont forget that in the Tyrannicide Brief not only did Charles lose his head his prosecutor was hung drawn and 1/4 for treason, and the executioner made sure that Cooke was not spared any pain.
Grisly stuff.
I have a somewhat more than passing acquaintance with the law and I certainly enjoyed it and found the legal analysis compelling. Robertson did seem (as he normally does) to want to impress with his knowledge of the law and only really gave Cooke’s life a cursory glance, but given his background that is understandable.
If he is correct (big if, but I am inclined to give the benefit of the doubt in the absence of other evidence) Charles I’s trial was about as fair as a treason trial got at that point in history, whereas Cooke’s was a farce.
A good friend of mine who is a server at St. Katherine Cree in London and enthusiastically takes part in the annual “Charles, King and Martyr” service would probably disagree, though.
Put it this way - if you are looking for a fair and balanced view of Cooke’s life - good luck. This is about the only book out there on him. If you want a book mostly filled with legal discussion and some mentions of a bloke named Cooke and his life this is a good choice.
rog,
I like the bits where they put entrails in boiling water while the previous owner of the said entrails is still alive and watching.
Yes Rog, and to address Rafe’s point that’s really the take-home story from the book. As G.R. tells it, Cooke was initially reluctant to take up the case, did so out of a genuine devotion to the principles of law as they were evolving at the time, and was scapegoated in the most awful way possible. There’s plenty more in it, but it revolves around the author’s attempt to highlight the huge role of a relatively humble low-born law-talking-guy in British and world history, hitherto somewhat ignored by history.
Care to tell us, FDB, what was good about the Rump Parliament, none of whose 80 members could really claim to be elected? I mean apart from taking the god-given right to rule as they saw fit and overturn the Constituion by violence.
Jason
Do you actiually know any history, or is your mind too taken up with the finer points of economics? Putitans who fought against Charles I have always been regarded by scholars as left wing, mostly because they spoke of liberty but really only wanted power for themselves. They had come within a gnat’s whisker of being beaten by the King in 1643 and thus called in the Scots, happily submittting to theCovenant by which all England would have been subsumed in a dour Prebyterian autocracy. How much more leftist can you get? Cromwell, like the odious Napoleon after him, took advantage of this general move to the left to become Dictator. He presided over the closing of the theatres and other puritanical acts that were definitely leftist. All in all though he was a prisoner of the idea that Government had a normative purpose.
“Care to tell us, FDB, what was good about the Rump Parliament, none of whose 80 members could really claim to be elected? I mean apart from taking the god-given right to rule as they saw fit and overturn the Constituion by violence.”
Ha! In Soviet Russia, question ask you!
The Rump Parliament gets excoriated in the book, BTW, but I’ll just take this as your admission that Chas 1 was a murdering despot with no concern for his subjects.
Cromwell is regarded as a hero of liberty and freedom of conscience in most parts of England, RL.
Power got to his head and he also did some dastardly things. Which is all the more an argument against the monarchy he overthrew.
Charles was bumped off because of his crimes against the people and then “the people” turned on Cooke and had him bumped off for reasons unknown, guilt perhaps? payback? or to pay off Charles 2?
Once they restored the monarchy they found that they couldnt restore Charles 1 head so they took Cookes. That was easy to do, just change the law and make him a law breaker.
The principle of law was bent to suit whoever held the reigns of power, Cooke only defended the principle of law, not its substance or correctness or even justice.
The royals are an awfully inbred lot. If we must have an inbred Head of State, why not choose a New Zealander? I hear Birdy is looking for a new line of work.
are you proposing that Birdy replace our current Queen, mel?
Yes, but only if he agrees to be crowned in QEII’s coronation gown.
Thats all right.
I’d look like some supertough PIMP of some sort.
The look would be enough to keep us out of war for a generation.
Plus as King I could run a sideline AS a Pimp.
King Graeme the First welcomes you to Buckingham Brothel.
I can see the front page of the Daily Mail now.
“Interesting, but not possible - as LE and RL will no doubt confirm, Equity is not a complete system of law, but a discreet set of principles that has no bailiwick across many areas of law (the criminal law being the most obvious example”
Not sure thats right SL. What is the defence of “battered wife syndrome” if not the application of equity in the criminal law jurisdiction. Strictly speaking, a woman who has waited for her husband to fall asleep, walks to the kitchen, returns with a knife, a stabs her husband to death, has murdered her husband. Self-defence cannot be invoked because she was not in imminent danger and she could have left the house. That the so-called “battered wife syndrome” is offered as a defence appears to me to invoke equity because of some dissatisfaction with the written law, which here is simply the criminal law.
Jason, re #43, yes, and those same people believe Diana was the People’s princess.
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.
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.
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.
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.
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.
Ahh yes, Drogheda, and Catholic babies drowned in the river, and disarmed men burned to death in a locked church.
“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.
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.
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.â€
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.
Sorry, forgot to add the reference for the Aristotle quotation above, its the Nicomachean Ethics 1137b20-24.
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’.
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.
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.
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.
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’.
Regarding Dworkin, etc., can I heartily recommend again Shirley Letwin’s On the History of the Idea of Law:
http://www.amazon.com/History-Idea-Shirley-Robin-Letwin/dp/0521854237/ref=pd_bbs_sr_1/105-6142511-3032410?ie=UTF8&s=books&qid=1184235336&sr=8-1
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.
I’ll be borrowing that one from the college library, I’m afraid - a mite too dear for me. Looks excellent, though.
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 universalityâ€. 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.â€
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.
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.
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.
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 Ye