Beyond Fusion Fallacy: The Transformation of Equity and Derrida's ‘The Force of Law’
| Date | 01 September 1997 |
| Published date | 01 September 1997 |
| Author | Simon Chesterman |
| DOI | http://doi.org/10.1111/j.1467-6478.1997.tb00002.x |
JOURNAL
OF
LAW
AND
SOCIElY
VOLUME
24,
NUMBER
3,
SEITEMBER
1997
ISSN:
0263-323X,
pp.
350-76
Beyond Fusion Fallacy: The Transformation
of
Equity and
Derrida’s ‘The Force
of
Law’
SIMON
CHESTERMAN*
INTRODUCTION
mhe ecclesiastical natural law foundations of equity, its concern with standards of
conscience, fairness, equality and its protection of relationships of trust and confidence,
as
well as its discretionary approach to the grant of relief, stand in marked contrast to
the more rigid formulae applied by the common law and equip it better to meet the
needs
of
the type
of
liberal democratic society which has evolved in the twentieth century.
Sir Anthony Mason!
In
short, for a decision to be just and responsible, it must, in its proper moment if there
is
one, be both regulated and without regulation: it must conserve the law and also
destroy it
or
suspend
it
enough to have to reinvent
it
in each
case,
rejustify it,
at
least
reinvent it in the reaffirmation and the new and free confirmation of its principle.
Jacques Derrida2
The functional relationship between equity and the common law has been
variously described in terms of a gloss, a saviour, and a symbiont.
The jurisprudential ends that were served by maintaining the purity of
Ashburner’s parallel but discrete streams3 have long since given way to
juridical conservatism, however, and modern debates on the fusion of the
jurisdictions (past, present, and future) are largely restricted to the sterile
realms of legal history
or
the interstitial specificity of judicial law-making.
This article attempts to provide a historical and theoretical context for the
evolving doctrines
of
the common law and equity by reference to recent post-
structuralist considerations of justice. It is my thesis that the tensions between
the jurisdictions reflect the conflicting objectives of law more generally
in
assuring social stability and predictability, as well as individual justice.
Moreover, the intensity of current debates suggest that the law is at a conjuno
tural moment that provides a unique opportunity to explore in depth what
*
Magdalen College, Oxford
OX1
4AU,
England
I
would like to express my sincere thanks to Michael Bryan, Robert Chambers, and the
Journal
of
Law
and
Society’s
anonymous referees for their critical comments on earlier drafts of
this article.
350
C
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1997,
108
Cowley Road, Oxford
OX4
IJF,
UK
and
3JO
Main Street, Malden, MA
02148.
USA
precisely is meant by
justice,
and how justice is
done.
Crucially, I ask what is
at stake when the adjudication of rights disputes between subjects of law (and,
importantly,
in
law) takes place in a forum that no longer makes a clear
distinction (if the distinction were ever
so
clear) between the systematic dispen-
sation of remedies to the plaintiff at common law, and the quasi-confessional
imposition of burdens on the conscience of the defendant in equity.
First, it will be necessary to establish the historical context of the fusion
debate, and to rehearse the current issues as they are generally raised. The
emphasis will be on the structure of argument and the explicit and implicit
theoretical positions articulated. Although the debate is dominated by the
bland assertion that fusion is ‘fallacy’, it is possible to discern several themes
that concern the functional relationship between the jurisdictions, and the
transformation in that relationship that has given rise to doctrinal effects
such as the privileging of unconscionability. Importantly, the recurrent
theme of unconscionability marks a change at a level deeper than the appli-
cation of doctrine: as
I
will argue, it marks a change in the structure of
justice itself.
This
historico-jurisprudential
account of the fusion debate demonstrates
that ‘justice’ may be in transition, but gives no clear answer of what it is to
become. I argue that neither the rejection of fusion nor the restriction of its
implications to judicial technique does ‘justice’ to what is taking place. In
part 11, then,
I
attempt to recast the foregoing historical and doctrinal
observations in the context of ongoing debates over the reconceptualization
of ‘justice’ within the poststructuralist paradigm. Here,
I
take the recent
work of Jacques Derrida as a leitmotif, critically evaluating its utility in
exploring the confusion and anger that fusion has caused among some
members of the legal community, and playing it off against more traditional
legal scholarship. This part of the article is consciously experimental, for it
seeks to open up questions rather than draw conclusions; the unifying thread
will be the need to reinstate the judge as a legal actor implicated in and by
her interpretive position, and the impossible demands of her responsibility
to do justice to the parties to a proceeding and to justice itself.
In this way, the effacement
of
the limit between the jurisdictions provides
the departure point for an exploration of justice without limits.
I. FUSION AND FALLACY: THE TRANSFORMATION
OF EQUITY
The Cause why there
is
a Chancery is, for that Men’s Actions are
so
divers and infinite,
that it is impossible to make any general Law which may aptly meet with every particular
Act, and not fail in some Circumstances.
The Office of the Chancellor is
to
correct Men’s Consciences for Frauds, Breach of
Trusts,
Wrongs
and Oppressions,
of
what Nature soever they
be,
and to soften and
mollify the Extremity
of
the Law, which is called
Summum
Jus.
Lord Ellesmere4
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Publishers
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1997
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