Arbitrary Chancellors and the Problem of Predictability
E Koops & WJ Zwalve (eds) Law & Equity: Approaches in Roman Law and Common Law pp 79-104 (Leiden: Martinus Nijhoff, 2014 Forthcoming)
26 Pages Posted: 10 Nov 2013
Date Written: November 2013
This is a chapter in a collection about comparison between Roman ius praetorium and English equity. My particular theme is that Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors; the issue was connected to constitutional concerns and had political-economic implications. The remedies adopted, however, were profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern ‘Chancery bar equity’ is perhaps the least ‘equitable’, in the Aristotelian ἐπιείκεια sense of ‘flexible’, branch of English law.
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