http://www.the-rathouse.com/Revivalist4/cricketessay.html

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).

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.

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.

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.

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 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’.