Book Review: Equity: Conscience Goes to Market
| Published date | 01 June 2020 |
| DOI | 10.1177/0964663920904870 |
| Date | 01 June 2020 |
| Subject Matter | Book Reviews |
Book Reviews
Book Reviews
IRIT SAMET, Equity: Conscience Goes to Market. Oxford:
Oxford University Press, 2018, pp. 217, ISBN 978-0198766773, £70.00 (hbk).
Those familiar with the prominent and prolonged ‘fusion’ and ‘conscience’ debates in
Equity might consider both somewhat stale. Nonetheless, neither topic will likely fade
away in the foreseeable future. In Equity: Conscience Goes to Market, Irit Samet revi-
talises the ‘pro-equity’ and ‘pro-conscience’ sides of these debates. In doing so, she
stimulates thought about both ‘conscience’ and the ‘market’, and relationships between
them, opening avenues for critically assessing Equity’s role in societies that have com-
mon law systems.
Sceptics of Equity’s ‘conscience’ fear that suc h an indeterminate concept invites
judicial capriciousness (Birks, 1996: 18). Fusionists deem it insufficiently distinctive
to justify Equity’s separate existence, especially at the expense of ‘horizontal justice’ or
like cases being treated alike (Worthington, 2006: 325). Samet contextualises these
criticisms with pillars of the ‘Rule of Law’ (ROL), particularly ‘generality’, ‘prospec-
tivity’ and ‘clarity’ (pp. 19–26). Rather than mandating menace and mayhem, the mild
degree to which Equity compromises these values complements the ROL aim – of
suppressing arbitrary exercise of power from the state – by disallowing the same from
private and non-state entities (p. 73). Private power that manifests in the market might
stem from, inter alia, one’s ownership of property or occupancy of a position of trust.
How can the law cast a net sufficiently broad to apprehend abuses of such power which
are often difficult to define or detect?
Samet theorises that Equity does so by equipping courts with moral principles and
language in pursuit of ‘Accountability Correspondence’:
When legal rules impose liability it should ideally correspond to the pattern of moral duty in
the circumstances to which the rules apply. (p. 28)
Whereas the Common Law is ‘rule’ oriented, Equity emphasises ‘principles’ or
‘standards’ (p. 19). Equity healthily works alongside the Common Law, providing prin-
ciples necessary to counterbalance the reality that self-interested parties will abuse the
strictness of legal rules to evade justice (p. 73). Samet non-exhaustiv ely cites some
historical examples where Common Law rights encountered situations compelling
development of Equitable principles to prevent a defendant from asserting the former
in avoidance of their moral responsibility to the claimant (pp. 32–33). These include
Social & Legal Studies
2020, Vol. 29(3) 444–459
ªThe Author(s) 2020
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DOI: 10.1177/0964663920904870
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