Equity is Dead. Long Live Equity!

Publication Date01 January 1999
Date01 January 1999
AuthorAlison Dunn
Equity is Dead. Long Live Equity!
Alison Dunn*
Margaret Halliwell,Equity and Good Conscience in a Contemporary Context,
London: Old Bailey Press, 1997, x + 151 pp, pb £19.95.
Should equity interfere in the market place? Mete out justice inter se? Retain a
proprietary-based and a discretionary-based foundation? Be integrated into a more
comprehensive and comprehensible juridical framework? Such questions,
pertaining to the present and future role of equity as a component of the English
legal system, readily spring from the most cursory examinations of equity’s
jurisdictions and of contemporary jurisprudence. Reasoned answers are not readily
forthcoming, and a body of academic and extra-judicial writing has debated,
discussed, celebrated and despaired of the use to which equity’s doctrines and
principles are being put.1
That equity has problems is axiomatic. These problems extend across theoretical
and practical levels and have led to a conceptual, if not material, impasse in
equity’s development. Indeed, the present position of equity stands as something of
a paradox. On the one hand, recent years have seen enormous leaps in the use and
application of equity’s doctrines and remedies, from the operation of the
constructive trust in domestic and now predominantly commercial spheres, to
the wider incorporation of equity in the still unrestricted arena of restitution.2Yet,
on the other hand, doubts as to the efficacy of equity in the modern legal landscape
abound, with question marks placed, for example, over the proper effect of equity’s
remedies on third parties, and the applicability of largely property-dominated
doctrines to a widely (and wildly) changing society.3The consequence of these two
seemingly contradictory circumstances is that whilst flourishing in one arena,
equity has remained nonetheless constrained from development in a wider, more
purposive sense.
In her book, which examines the role of conscience as an organising and
interpretative principle underlying equity, Halliwell traces equity’s malaise to two
fundamental problems. First, there is the use of equity’s doctrines in contexts
divorced from those in which they first operated. One should hardly be surprised at
the semantic and conceptual confusion evident in the present law, given that many
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA.
*Newcastle Law School.
1 A selection of this literature is cited in the notes below.
2 On the suitability of Equity for such expansion see, J. Langbein, ‘The Secret Life of the Trust: The
Trust as an Instrument of Commerce’ (1997) 107 Yale Law Journal 165; P. Millett, ‘Equity’s Place in
the Law of Commerce’ (1998) 114 LQR 214; A. Mason, ‘The Place of Equity and Equitable
Remedies in the Contemporary Common Law World’ (1994) 110 LQR 238.
3 As Millett has pointed out with more truth than jest, rather than change equity’s rules ‘some of the
judges would have much preferred to be able to adapt society’ instead: ‘Equity – The Road Ahead’
(1995) 9 Trust Law International 35.

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