Equity

Abstract:     
This chapter is an exploration of the meaning and nature of equity by reference to the decisions and writings of Michael Kirby. It appeared in a festschrift devoted to him. The chapter begins with a discussion of the historical development of equity and considers the difficulties involved in one interpretation of Aristotlean equity. That conception sees equity as a distinct and separate form of individualized justice. The greatest difficulty with this approach is that, unconstrained, it undermines the Rule of Law. But a closer examination of the decisions of Michael Kirby shows that he did not subscribe to such a conception. Instead, the difference between him and his colleagues was the different weight he placed on the need for a principle to fit existing rules and his rejection of the dictum of Justices Gaudron and McHugh that “In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature.”

Number of Pages in PDF File: 17

Accepted Paper Series