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15 - Equity and the Modern Mind

from Part III - Functional, Analytical and Theoretical Views

Published online by Cambridge University Press:  26 July 2019

By
Emily Sherwin
Edited by
John C. P. Goldberg ,
Henry E. Smith  and
P. G. Turner
John C. P. Goldberg
Affiliation:
Harvard Law School, Massachusetts
Henry E. Smith
Affiliation:
Harvard Law School, Massachusetts
P. G. Turner
Affiliation:
University of Cambridge
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Summary

Rules are general in their scope and application, such that they inevitably produce injustice and hardship in particular cases. How might the law respond to this? The solution found in English law was provided by the Court of Chancery: particular cases can be held to fall outside the general rules, and equity be done accordingly. Before American Legal Realism became influential, this distinction was firm in the case law. However, Legal Realism has prompted lawyers to treat all law as equitable: all legal decisions are to respond to the particular facts of the case, and the judge is encouraged to decide cases in that way. This has removed the special quality of equitable rules.

Keywords

jurisprudencerulesgeneral rulesparticular casesAristotleequityequitable defences
Type
Chapter
Information
Equity and Law
Fusion and Fission
 , pp. 353 - 373
Publisher: Cambridge University Press
Print publication year: 2019

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