EQUITY AND OBLIGATIONS
| Published date | 01 May 1976 |
| Date | 01 May 1976 |
| DOI | http://doi.org/10.1111/j.1468-2230.1976.tb01457.x |
EQUITY
AND OBLIGATIONS
I
SHALL
assume in what follows that one of the qualities possessed
by recognisable social groups is a shared understanding about
promises-to what extent they are binding, and how, if at all, they
should be enforced.' It is widely accepted that legal rules in complex
societies are the result of recognition, bestowed by the authorised
institutions, upon individual or group claims. Assuming the
descriptive adequacy of this model, two characteristics seem likely
to affect its performance: the inequality in the assertive capacity of
those making claims; and the nature of the pre-suppositions held
by the recognising
institution^.^
Focusing
on
the courts, it seems
fairly clear that certain types of person are not asserting claims
there-notably businessmen and those with incomes which are low
in the context of the cost of litigation.
Commercial enterprises prefer arbitration to litigation, even
though the former may be more expen~ive,~ and still more informal
processes to arbitrati~n.~ The result may be
a
divergence of com-
mercial mores from those current in the courts, and an
''
Alsatia in
England, where the King's writ does not run."6 Low and middle
income recipients are largely excluded from asserting claims in the
courts by reason of their condition and its concomitants,'
so
that
although both social welfare and revenue tribunals allow appeals
to the courts
on
a
similar basis and though the numbers and aggregate
sums dealt with in the former dwarf those in the latter, Blom-
Cooper and Drewry discovered that
30
per cent. of the House
of
Lords time in hearing English appeals was taken up with revenue
cases.B
As to the second characteristic, and again concentrating
on
the
courts, it ought to be fairly clear from juristic writing that ample
scope exists for judicial discretion in the trouble case-indeed the
choice is inevitable. The manner of its exercise and its discretion,
1
A.
Rawls,
A
Theory
of
Justice,
347; and Nowell Smith,
Ethics,
225-258 on
promises. On the conflict view
OP
society see,
inter alia,
tho works of Ralph
Dahrcndorf. The Parsonian, consensus, view of society
is
rejected because it does
not seem consistent with observed social conflict and change.
2
See
Pound,
inter alia, Social Control through Law;
Stone,
Social Dimensions
of
Law and Justice,
particularly chap. 4.
3
For
a
criticism
of
the notion that law making institutions can be value free.
see
Chambliss and Sidman,
Law, Order and Power,
part
11.
4
Jackson,
Machinery
of
Justice in England,
6th ed., p. 118.
5
Gower, in
Law
and Public Opinion in England in the 20th century
(ed. Cower).
1959, p. 170.
6
Czoyikov
v.
Rorh
Schmidt
[1922] 2 K.B. 378, 488,
per
Bankes L.J. See also
Devlin, The Relation between Commercial Law and Commercial Practice
"
(1951)
14 M.L.R. 249.
7
e.g.
lack of access to legal services as discussed in Abel Smith, Brook and
Zander:
Legal Services and the Citizen:
the policy of the Law Society
in
granting
legal aid, etc.
8
Blom-Cooper and Drewry.
Final Appeal,
p.
317.
Q
e.g.
Cross,
Precedent;
Stone.
Legal System and Lawyers Reasoning;
Seidman,
268
May
19761
EQUITY AND OBLIGATIONS
269
still often concealed, in England, behind
a
bland reiteration of the
declaratory theory of law, has favoured certain principles-
domestic privacy and freedom to exercise
"
private
"
power, for
examplelO:
as
Stevens" expressed
it,
freedom
to
contract is
preferred to freedom
of
contract.
These defects in the legal structure affect its performance as a
learning system.
l2
Change in judge-made law obviously pre-supposes
litigation. Judicial concepts, once established as
a
response to social
demand, are generally unwieldy,
so
that where
a
wider access
to
the legal system is concerned,13 or where social demand from
a
previously articulated source changes," difficulty may be encountered
in dealing with the new situation. Attempts to overcome the
difficulty by infiltrating and altering the nature of existing concepts
may be satisfactory: equally, to the extent that the changed concepts
remain in the same relation to one another, as the original con-
cepts, the initial difficulty may be compo~nded.~~
If
judges are
expected to continue to create law, and
to
make available remedies
consonant with changed conceptions of justice,
I
suggest that
equity may be a useful vehicle for this accomplisment.
Discussions of justice range at large,'" but in the context of legal
systems the traditional ethical component has been equity.l' In
England
it
may be, as Milsom has suggested, that originally
"
the
true newcomer was not equity but positive law," yet there
is
a
close association between one of the functions of the early transfers,
and the notion of a higher law to which other jurisdictions may be
subordinate. It is hard to see how it could be otherwise, for the
occasional inadequacy of regular rules and the need for an over-
riding discretion in the interests of justice, have been
a
subject for
"
Judicial Process Reconsidered
"
(1969)
32 M.L.R.
516:
Robertshay;
"
Characteristics
of
the Judicial Group and their Relationship to Decision Making
(1973) 47
A.L.J.
572.
10
See, for example, the assumption of the House of Lords that anti-discrimination
legislation was not aimed at clubs,
no
matter how large their membership, which
could be categorised as private.
Charter
v.
Race Relations Board
[
19731
1
All E.R.
512;
Dockers Labour Club and Institute
v.
Race Relations Board
[
19741 3
All E.R.
592.
11
Stevens,
"
Justiciability-the Restrictive Practices Court Re-examined
"
119641
P.L.
221.
12
Sec Schon,
The Loss
of
the Stable State.
13
e.g.
through legal ald provision,
or
by
a
change in the distribution
of
wealth
relative
to
the cost
of
litlgation.
14
The right to competc for cxamplc, once established, may countenancc actions
to
stine competition. Actions for damages
for
personal injury may be conducted
as
though the injured party had
not,
long
ago, bccn compensated by insurance; as
though the battle were not one between insurance companies.
l6
The most obvious examples of changes in the value
of
a variable which have
not been rcflected in a change in the relation of that variable
to
others, are provided
by statutory changc-e.g. the use of offer for sale
in
the Restriction
of
Offcnsive
Weapons Act
1959,
s.
1, and the result in
Fisher
v.
Bell
1
19611
1
Q.B.
394.
Most recently, see Rawls.
A
Theory
of
Justice.
17
Newman,
Equity and Law Comparative Study.
See the brief summary
In
Stein and Shand,
Legal Values in Western Society,
97.
Milsom,
Historical Foundations
oj
the Common Law,
80.
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