A CRITICAL THEORY OF EQUITY

What is it about?

A SUBALTERN THEORY OF EQUITY ABSTRACT This article is a critique of some of the central ideas of equity’s jurisprudence as have evolved over the centuries of the development of the common law system. Equity as a subject benefits from a substantial body of writing, formidable in volume and authority. It is perhaps for this reason that the degree of uniformity that characterises equity’s jurisprudence is somewhat surprising. This jurisprudence has historically largely reflected equity through a conceptual penumbra of fairness and justice distinguishable from, but firmly connected to, morality and right doing. Although equity writers formally and scrupulously draw a distinction between equity in a juristic sense and its popular sense as a synonym for fairness, there is little doubt that equity was conceived as a system of corrective justice, providing reason and justification for the development of English law, deemed to be based on conscience and morality. A careful examination of the historical function and contemporary application of equity as an institution of English law suggests an entity with a subversive past and a present potent facility for the preservation and accumulation of wealth. It will be argued that equity, in essence, embodied a ‘smart’ juridical instrument for dislocating the feudal legal order and promoting the emergence and subsequent entrenchment of capitalist property relations, rather than being the embodiment of moral justice and fairness. It will be suggested that the experience of the British imperium in West Africa, for example, where equity was imposed as an indispensable component of the facilitative colonial legal order, offers a particularly stark manifestation of the subversive and transformatory function of equity in respect of extant property relations. The challenge of this work therefore is to contribute to the construction of a general theory of equity that seeks to overcome the gaps in coherence.

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Why is it important?

1. INTRODUCTION ‘Law has long been thought worth studying for its intrinsic philosophical or social interest and importance, which relates to but extends beyond its immediate instrumental value or professional relevance. In this sense, (as Holmes puts it), law is “a great anthropological document.” ’ Thus, beyond mere scholastic curiosity or even indulgence, this ‘anthropological document’ provides us with the facility to transcend the normal professional needs of the legal practitioner for specific answers to a particular legal problem, and helps us to achieve a more general understanding of law, provenance, utility and future. In this context, there are fewer areas of inquiry more engaging and revealing than a study of the development of the common law system and the various strands that have come together to provide it with its particular structure, content and philosophy. One specific and central strand of the common law system, which is the subject of this essay, is equity. The presence of equity as the so-called helpmate of the common law is generally what is considered to make the English legal system a juridical binary or duality. This putative duality is expressed as differentiating the English legal system from all other systems of law as the co-inherence of equity marks out the English system as a unique entity. This characterisation of the English legal system is so long-established as to render almost futile any questioning. However, a closer examination of equity’s provenance and functioning would seem to justify a substantial re-evaluation as it reveals a far more complex entity sometimes contradicted by aspects of its institutional functioning. Equity as a subject benefits from a substantial body of writing, formidable in volume and authority. It is perhaps for this reason that the degree of uniformity that characterises equity’s jurisprudence is somewhat surprising. This jurisprudence has historically largely reflected equity through a conceptual penumbra of fairness and justice distinguishable from, but firmly connected to, morality and right doing. Although equity writers formally and scrupulously draw a distinction between equity in a juristic sense and its popular sense as a synonym for fairness, there is little doubt that equity was conceived as a system of corrective justice, providing reason and justification. for the development of English law, deemed to be based on conscience and morality (and therefore deriving from natural justice). It is indeed striking that this formalistic distinction which the authorities make between equity in its popular and technical senses simply distinguishes between institutional equity as developed by the medieval English Court of Chancery, but never in denial of the concept of equity as a natural law derivative employed globally by both civil and common law systems and even within the sphere of international law. This situation is indicative of a rather curious but interesting phenomenon in the jurisprudence of equity which may be evocatively vulgarised as a kind of juristic schizophrenia arising from the contemporaneous affirmation and denial of the moral justice function of equity. Snell provides an illustration of this in his authoritative work, Principles of Equity . Whilst warning that it would be a mistake to regard institutional or technical equity as co-extensive with natural justice, he then goes on to state as follows: ‘Nevertheless, by far the greater portion of natural justice is enforced by legal sanction administered by the courts. In support he quotes Lord Romilly M.R. as follows: ‘The legal duty, in this instance, as I believe it is in all cases where it is fully understood and examined, is identical with the moral duty.’

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