16. Equity

Philosophical Foundations of the Law of Equity, 2019

I defend three related ideas regarding the law of Equity (‘Equity’), and discuss another that is much more speculative. The first two related ideas are that Equity has the characteristic form of public law, and that Equity shares public law’s basic concern, which is to regulate power held by one party for the benefit of another. Equity and public law alike are structured by the presence of other-regarding power in the legal relations they govern. The third related idea is that the legal form of Equity and public law answers to a particular kind of justice that is neither corrective justice nor distributive justice, but what I call jurisdictional justice. The speculative idea I consider is that Equity is best regarded as a species of public law. I refer to the conjunction of the first three ideas as the weak public law theory of Equity. This theory is consistent with Equity belonging on either side of the private law/public law divide. I refer to the conjunction of all four claims as the strong public law theory of Equity. On this account, Equity is a species of public law. My aim is to defend the weak public law theory, identify some of the obstacles that stand in the way of the strong theory, and then nonetheless offer some tentative arguments that aim to show some of the features and possible merits of the strong theory. In Part II I distinguish Equity’s anti-opportunism law, which involves cases of rights sticklers and opportunists, and Equity’s jurisdictional law, which is mainly cases involving fiduciary relations, such as trusts or agency relations. Part III compares trust law and administrative law, and a series of doctrines they share. In Part IV I discuss other-regarding powers. These powers are a defining and structural feature of Equity. Their significance to Equity is the principal basis for thinking that Equity has the form of public law. In Part V I argue that Equity is structured by jurisdictional justice. This is the form of justice apposite to supervisory review of the exercise of other-regarding powers. Its structure is plainly evident in Equity’s jurisdictional law. In Part VI I argue that this mode of justice is also present in Equity’s anti-opportunism law. In Part VII I canvas some of the advantages of the weak and strong public law theories, and their explanatory power.

Alors que le système connu sous le nom de Common Law se développait, un phénomène de fossilisation de la procédure d'accès aux tribunaux limita le recours à la justice pour les sujets du royaume ainsi que le pouvoir des juges (1258 Provisions of Oxford). Le Roi, « Fontaine de justice » et dernier recours des pétitionnaires, délégua son pouvoir de rendre la justice à son Lord Chancellor, son Secrétaire d'État et ecclésiastique à l'origine, qui remédia à ces nombreux dénis de justice en créant un système destiné à corriger les défauts de la loi sans s'y substituer : l'Equity. Système inspiré du droit canon, l'Equity juge en fonction de ce qui est moralement acceptable, et introduit en droit anglais de nouveaux droits, de nouvelles procédures et de nouveaux remèdes. La présente contribution analysera comment l'Equity, au moment où elle se constitue, peut représenter un embryon de justice réparatrice, et le Lord Chancellor un prototype lointain du défenseur des droits, et comment, d'autre part cette approche particulière du droit demeure fermement ancrée dans le système judiciaire anglais. Abstract: As the legal system known as Common Law was developing in England, access to justice via the procedural writ system was abruptly limited by the 1258 Provisions of Oxford, which denied access to those litigants who could not fit in the existing claim forms and prevented judges from creating new ones. The King, " Fountain of Justice " and last resort for the petitioners, delegated his residual prerogative to render justice to his Lord Chancellor, both secretary and confessor. The latter remedied to this denial of justice by setting up a system of court designed to mitigate and correct the rigours of the law without becoming a substitute for it. This system, inspired by canon law and called Equity, decides cases according to what is morally right, and introduces new rights, new procedures and new remedies into English law.

Journal of Law and Politics, 2019

The first part of this paper offers a general overview of the historical origins of English common law tradition and identifies some of the principal factors that contributed to its development. The second and third parts of the paper consider in more detail the rise and growth of equity, assess its relationship with the common law and comment on its role in contemporary law.

Equity have always been there as a friend and an appendage to the edges,and harshness of the Common Law, and not a revolt to it. Here is the documentation of the history that brought both Common Law, and Equity together, and how their dispute arose. It also encompass the resolution of this issue and other analogous issues thereof.

2021

This is a book on “equity in the civil law tradition” from the double perspective of legal history and comparative law. It is intended not only for civil lawyers who want to better understand the role and history of equity in their own legal tradition, but also – and perhaps more saliently – for common lawyers who are curious about why the history of equity has unfolded so differently on the continent of Europe and in Latin America. The author begins with the investigation of the philosophical foundations of the Western notion of equity in the teachings of Plato and Aristotle and of how their ideas affected the works of the great Attic orators (chapter 2). He then addresses the way in which Roman law turned this notion into a legal concept of considerable practical importance (chapter 3) and how it survived the fall of Rome and was later elaborated in the Middle Ages by civilists and canonists (chapter 4). Subsequently, the author analyses how the notion of equity was dealt with in the Modern Era by legal humanists, Protestant and Catholic theologians, scholars of the usus modernus pandectarum and of Roman-Dutch law, and then by legal rationalism and the philosophers of the Enlightenment (chapter 5). He then deals with the history of equity on the continent since the fragmentation of the ius commune and the codifications of the nineteenth century and with its reception in Latin America (chapter 6). Finally, the author offers some closing remarks on the fundamental equivocalness (or relativity, as some scholars put it) of the notion of equity in the civil law tradition today (conclusion).

R.P.V.W.Rathnayaka , 2021

This paper includes a brief discussion on the relationship between Equity and Common Law and the role of equity in the modern context.

Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the "new equity" cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity-from the Employment Retirement Income Security Act to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary's power to grant equitable relief, the Court has overlooked the underlying source of that power: the provision of Article III that extends "[t]he judicial Power" to cases in "Equity." This Article uncovers federal equity's constitutional source. Applying the Supreme Court's historically inflected methodology, it argues that "[t]he judicial Power" in "Equity" is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-Era English Chancellor. Put simply, Article III empowers federal courts to apply the system of equitable remedies administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express congressional action (which is rare), it is Article III itself-not federal statutes-that defines the limits of federal equity. Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court's time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-Era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.