Equity And Rule Of Law: Is Equity More Determinate

Abstract

This article critically considers whether Equity has developed and is now more determinate in relation to the propositions involved in the quote made by Professor Matthew Harding. To fully consider this topic, the article is going to look at the views of different judges and commentators as well as discussing the relevant case law. The article will talk about conscience, equitable maxims, and imperfect gifts. The fusion theory will also be mentioned to determine if Equity is as certain as Common Law. The conclusion drawn is that Equity has developed, and the usage of some equitable maxims made equitable rules more determinate. Thus, the propositions made by the Professor is partially agreed. On the other hand, it is also argued that

In everyday usage, Equity refers to being ‘fair and just’. However, the legal meaning of Equity is more limited. As described by Maitland; ‘It acts as an appendage or ‘gloss’ on the common law’. In other words, Equity is a branch of the law that was developed in order to alleviate the rigid application of Common law rules . From the time when it has first emerged, the law of Equity has been through numerous transformations. Hence, it is now another question whether these developments resulted in the rules of Equity becoming more determinate or not. One proposition in relation to this subject came from Professor Matthew Harding. In his article named ‘Equity and Rule of Law’, Professor argued that Equity has developed from its original days and the rules of equity have become more determinate. He further argued that this change can be seen in the recent treatment of incomplete gifts. The aim of this article is to critically consider this proposition from a number of different perspectives. It will first describe the historical evolution of Equity and its connection with the Common Law. Then, it will go through to analyse why this proposition is partially correct by talking about how Equity is now more structured due to the presence of equitable maxims. This argument will be supported using a specific maxim that led to clearer equitable rules. Relevant case law will also be used for illustrating how this maxim is being used by the

Throughout the 13th and 14th centuries, the judges in England created the ‘Common Law’ which was a system based on strict rules and precedents. However, this dependence on judicial precedents resulted in Common Law becoming rigid and restrictive. Hence, litigants who were unable to obtain a remedy or who found the result produced under the Common Law System harsh, petitioned to the King. Due to a large number of petitions made to the King, the duty to deal with these petitions was then transferred to the Lord Chancellor who was known as the ‘Keeper of the King’s conscience’. Eventually, a special court known as the Court of Chancery was set up by the King. The holdings of this court depended upon the conscience and morality of the Lord Chancellor unlike the rulings of the Common Law Courts. The law that was established and enforced in the Court of Chancery resulted in the emergence of what is now known as ‘Equity’. Over time, Equity became more popular as it had greater flexibility and was more approachable than Common Law. However, conflicts arose when the two courts started to overlap with each other. One of the main areas of conflict was in relation to the issue of injunctions and this came to a head in the Earl of Oxford’s Case. In the case, the Common Law justices objected to the Chancellor issuing an injunction in order to prevent