Maxims of Equity: A Juridical Critique of the Ethics of Equity Law in Great Britain

Maxims of Equity: A Juridical Critique of the Ethics of Equity Law in Great Britain

Maxims of Equity: A Juridical Critique of the Ethics of Equity Law in Great Britain

Maxims of Equity: A Juridical Critique of the Ethics of Equity Law in Great Britain

Excerpt

The genius of equity as a curative to the unyielding rigors of the common law is one of the great legal triumphs of the past millennium. Since the reign of Richard II, the Court of Chancery, administered by the Lord Chancellor, was developed as its own separate legal organ. This was distinct from the courts of yore which had previously been governed by the fickleness of the “King’s Conscience” and became characterized by a more congealed set of principled guidelines. Whilst originally confined to trusts of land and management of the estates of lunatics and minors, this once nascent and inconspicuous appendage of legal thought has since bourgeoned into one of the predominant intellectual forces underpinning modern civil law. This transformation has never been more clearly witnessed than in the historic Judicature Acts of the 1870s.

1 The Judicature Act of 1873 (ss. 3, 4) abolished the traditional distinction between the Courts of Chancery, Common Pleas, Queen’s Bench and Exchequer, amongst others, consolidating them into the newly-created Supreme Court of Judicature. More importantly, the Act sought to streamline the divergent legal outcomes generated by separate courts of law and equity, such that remedies afforded by both were now available under a scheme unified not only in substance but pleading and procedure. Not only did this reduce the jurisdictional aritrage endemic amongst litigants who would seek the most favorable

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