RESEARCH HANDBOOK ON PRIVATE LAW THEORIES, Hanoch Dagan & Benjamin Zipursky eds., Forthcoming
15 Pages Posted: 9 Jun 2020
Date Written: May 13, 2020
The theoretical engagement with the law of Equity has never been so popular as nowadays. This immensely important body of law is now attracting the attention of private law theoreticians as questions that were first raised by Aristotle take a modern twist, and entrenched traditions are being questioned. The chapter explores the main strands of this renewed philosophical interest in Equity through the lens of the fusion debate, i.e. the question whether and to what extent Equity should retain its independence from the common law. Fusion is an apt gateway to the theoretical study of Equity as it engages two fundamental questions: 1) what is the price for preserving the current dualist system of Equity/Common Law (doctrinally if not institutionally); and 2) whether Equity’s unique mode of adjudication and/or the structure of its norms enable it to play a role whose benefits outweigh the price of this dualism. The flexible, retroactive and particularistic manner of deciding cases which they employed, and the open-ended morally freighted norms which they developed placed the courts of Equity in the line of fire from the very start. The chapter assesses, and rejects, the modern version of this ‘Equity scepticism’ as largely exaggerated and as based on misconceptions about the concept of conscience in Equity, and the relationship between legal rules and the Rule of Law. In sharp contrast with the previously-dominant nominalist perception of Equity as a collection of doctrines that historically happened to originate in the Court of Chancery, the chapter supports a positive answer to the second question. It looks favorably at three attempts to identify a theme that runs through (at least) the core doctrines of Equity, and amounts to a vocation that can salvage this body of law from the accusation that it erodes the Rule of Law: combating opportunism, aligning private law with deeply-held moral convictions and introducing a new form of rights against other rights.
Keywords: Equity, Fusion, Aristotle, Common Law, Rule of Law
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