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A Subaltern Theory of Equity

Document Cited authorities 17 Cited in Related
Vincent
Pages12-44
Author
DOI10.3366/ajicl.2016.0138
Date01 February 2016
Published date01 February 2016
<p> <disp-quote> <p>Such is the unity of all history, that anyone who endeavours to tell a piece of it must feel that his first sentence tears a seamless web.</p> <attrib>F. Pollock and F. W. Maitland, <italic>The History of English Law</italic>, Vol. 1, Law Books Exchange (1996), p. 1.</attrib> </disp-quote> </p> 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’.1

R. Cotterrell, The Politics of Jurisprudence, Butterworths (1989), p. 1.

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 the 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 article, 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.2

Maitland, Bracton, Hazeltine, Salmond, Story, Holdsworth, Steele, etc.

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,3

‘To a mind innocent of a knowledge of law Equity must primarily mean right doing, or justice in the purely ethical meaning of that word. Nevertheless to the learned in any legal system equity rarely retains that freshness of interpretation, because some sort of technical significance tends to attach to it’, Potter, Historical Introduction to English Law, Sweet and Maxwell (1932), p. 483. See also M. I. Jegede: ‘To a layman, the question ‘‘what is equity?’’ does not create any difficulty. It simply means right doing, good faith, honest and ethical dealings in transactions or relationships between man and man or whatever is right and just in all human transactions and relationships. Conception of the term ‘equity’ in this sense is usually classified as equity in its most popular sense, which is of no juristic significance’ (emphasis added), Principles of Equity, Ethiope Publishing (1981), p. 7. Snell also states that ‘…it would be a mistake to suppose that the principles of equity as administered in the courts…are coextensive with principles of natural justice’, Snell's Principles of Equity, 27th edition, Sweet and Maxwell (1973), p. 5.

 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.4

See, for example, A. Kaczorowska, Public International Law, Routledge, 4th edn (2010), pp. 60–1.

 This situation is indicative of a rather curious but interesting phenomenon in the jurisprudence of equity that 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.5

Snell, supra note 3.

 While 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.’6

Ibid., Lord Romilly's statement is quoted from Cooper v Jarman (1866) L.R. 3 Eq. 98 at 102.

Perhaps the best-known judicial expression of the formal distinction traditionally drawn between popular and technical equity is the statement, obiter dicta, made by Fry L.J. in a case involving an unconscionable but not illegal practice perpetrated by a company director. In dismissing the claim against the director, Lord Fry said thus: ‘If we were sitting in a court of honour, our decision might be different.’7

Re Cowley & Co, (1889) 42 Ch. D. 209 at 236.

The apparent lack of coherence with regard to equity's function is easy to explain in historical terms as a product of its specific evolution and development alongside the common law in England through the Middle Ages. In particular, the subsumption of conceptual or broad equity, which in origin was said to pervade all judicial administration permeated English judicial administration8

See Potter, supra note 3, at pp. 491–2; also, Plucknett, A Concise History of the Common Law, Butterworths (1958), pp. 677–80.

, by the Chancery and its transformation by successive Chancellors into technical or institutional equity

As noted above, it is the exclusivity of the development of equity as an institution of English law within the jurisdiction of the Chancery that has led to the universal assumption of a dichotomy between the different meanings of equity in a conceptual or general sense, and its technical or institutional sense.9

See T.F.T Plucknett, A Concise History of the Common Law, Liberty Fund, 5th edn (2010), p. 673. He notes that neither theory nor practice required the assignment of law and equity to different institutions. He concludes that ‘…in practice, courts of law could administer equity whenever the need arose’.

As equity in England became the exclusive concern of the Chancery, this ‘…institutional history has had a confusing effect upon the result’, according to Plucknett.10

Plucknett, supra note 8.

 Furthermore, it is asserted that one specific aspect of this institutional history has prevented the construction ‘of a general theory of equity’.11

Plucknett, supra note 9, at p. 674.

Against the background outlined above, the objective of this article is to expose and challenge some of the central ideas of equity's jurisprudence that have evolved over the course of centuries of English legal history in an attempt to offer a coherent theory of equity that accommodates both conceptual and institutional equity.

While the centrality of the role of equity in shaping and directing the evolution of English law requires no proof, the problematic but critical issue is the attribution of a moral justice function to English equity at the same time that we maintain a scrupulous distinction from conceptual or general equity. A closer 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.12

See, for example, K. Akuffo, Equity in Colonial West Africa – A Paradigm of Juridical Dislocation, Journal of African Law (2) Vol. 50 (2006): 132.

The challenge of this work therefore is to contribute to the construction of a general theory of equity that seeks to overcome the gap in coherence as indicated above.13

See supra note 10.

 A THEORY OF EQUITY?

In seeking to offer a generalised theory of equity that brings the different dimensions of its jurisprudence together in a cohesive way, the objective is not to achieve an enforced uniformity of equity's functioning. Indeed, it is asserted in this article that an observable feature of equity in all of its historic manifestations is its multi-functionality and flexibility deriving from its elasticity as judicial process – the art of judgment, according to Maria Drakapoulo14

M. Drakapoulo, ‘Equity, Conscience and the Art of Judgment as...

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