2.1 Equity: The Traditional Approach

At least since Plato, many philosophers have argued that every activity of statutory law-making is subject to the impossibility of anticipating the numerous circumstances that might potentially bear on the activity under regulation.Footnote ¹² Let us call this a ‘problem of legislative foresight’. Were it possible for legislatures to foresee all of these circumstances, then no equity would be needed. But it is a brute fact of reality that legislatures cannot foresee every possible scenario; and even if such foresight were achievable, Aquinas strongly urges the lawmaker against including every hypothetical situation in the written rule, to avoid creating confusion.Footnote ¹³ As a result, some cases will inevitably arise in which the strict application of a written rule may produce results not supported by the lawmaker’s intentions at the time of enactment. The rule’s application may even lead to injustice, and that is why Cicero claimed that “summum ius summa iniuria” (i.e., the rigorous application of the law often leads to extreme injustice).Footnote ¹⁴ For these philosophers, a problem of legislative foresight is neither an error of the law nor of the legislature, but part and parcel of legislating.Footnote ¹⁵ Legislating inevitably carries a negative by-product—namely, the risk that a party may suffer an injustice due to the application of a rule in a situation not anticipated by the lawmaker. It is this injustice, as Salmond notes, that judges may remedy or correct when they are permitted to decide disputes on equitable grounds.Footnote ¹⁶

Proponents of equity argue that in ‘unforeseen cases’—i.e., cases the legislature did not anticipate due to limited foresight—judges should qualify the canonical formulation of the statutory rule by giving effect to its underlying reasons. This technique is known, and has historically been known, as ‘equitable interpretation’. Although it may resemble ‘purposive interpretation’, I prefer to treat the two techniques as distinct.Footnote ¹⁷ Equitable interpretation is possibly the first, but by no means the only, way of deciding unforeseen cases. Its scholarly origins can be traced to Aristotle, who argued that equity prioritises the intentions behind a rule over its canonical formulation.Footnote ¹⁸ To the extent that judges may avoid summa iniuria by basing their decisions on equity, many philosophers think that equity is a virtue. For Aristotle, whose views on the topic can be difficult to reconcile,Footnote ¹⁹ equity is even “better than one kind of justice,” namely “legal justice.”Footnote ²⁰

Because equitable interpretation looks at the reasons the lawgiver had for enacting a particular rule, it has often been presented as a lawful (i.e., law-respectful) means for deciding unforeseen cases. However, the history of equity suggests that identifying these reasons has frequently involved first-order moral (and political) reasoning.Footnote ²¹ The presence of this type of reasoning is partially explained by one problem we frequently find in the literature and case law dealing with unforeseen cases: What exactly are the reasons underlying a statutory rule? Are these the reasons the legislature actually considered when enacting the rule, or the reasons an idealised legislature would have considered had it foreseen the case in question?Footnote ²² In England, where equity was institutionally administered by the Chancery, there is important literature suggesting that the answer to this question often turned on whether judges had reliable epistemic access to the real intentions of the lawmaker. If they did not, then hypothetical reasons, usually framed in terms of presumptions about an idealised legislature, were required.Footnote ²³

While scholars such as Richard Ekins argue that equity should be exercised solely through equitable interpretation,Footnote ²⁴ an alternative and more pragmatic method is also evident in the history of equity. This approach, which can be termed ‘equitable suspension’, does not require judges to focus on the rule’s underlying reasons.Footnote ²⁵ Instead, it aims to address a conflict between the application of that rule to a particular case and a sound moral consideration grounded in a hierarchically superior norm. By suspending the rule’s application between the parties to the dispute and thereby creating an exemption to the decision otherwise required by law, the judge protects the moral consideration at risk. This is done even if the judge cannot show that the equitable decision aligns with the rule’s underlying reasons.Footnote ²⁶ What matters, in terms of justification, is that the judge grounds the value of protecting the moral consideration in a norm that holds a higher hierarchical status than the statutory rule being suspended.

The hierarchically superior norm has changed over time. In early-modern England, the Chancery frequently relied on medieval conscience as an objective basis for protecting moral considerations that might be jeopardised by strict adherence to common-law decisions.Footnote ²⁷ Today, in the era of secular constitutional democracies, it is surely less common to find scholars and judges openly supporting the power of judges to suspend the application of statutory rules to protect moral considerations ultimately grounded in eschatological and theological concerns. But it is not uncommon to find neo-constitutionalist judges suspending the application of statutory rules on grounds of moral considerations they consider sound insofar as they can be supported by a constitutional value, such as a fundamental right. We may remain agnostic as to whether these judges decide this way out of necessity or “sudden risk” (as Aquinas thought they should),Footnote ²⁸ or whether they do so as a customary yet politically fragile means of supplementing the will of the legislature.

Historically, equitable interpretation and equitable suspension have overlapped—particularly when, in the sixteenth century, Christopher St. Germain attempted to justify the Chancery’s exceptional jurisdiction. As noted earlier, when compliance with a decision given at common law conflicted with a requirement of conscience, the Chancellor would provide residual relief to the losing party by suspending the binding effect of that decision.Footnote ²⁹ For St. Germain, that exceptional power was justified on the ground that “every general rule of every positive law” has exceptions “secretly understood.”Footnote ³⁰ By interpreting the law according to its ‘spirit’, the Chancellor would recognise these secret exceptions as a way to fulfil its institutional mandate, namely to protect the requirements of conscience.Footnote ³¹ As Plucknett and Barton write, “St. German is the first English author to attempt anything which could be described as an account of the equitable jurisdiction of the Chancellor.”Footnote ³²

Now, however influential St. Germain’s views may have been,Footnote ³³ we should not overlook the fact that, in his account, most of the heavy lifting is done by the need to justify the Chancery’s role in protecting the requirements of conscience, rather than by the proper ways of interpreting the law.Footnote ³⁴ The reasons for this run deeper, I suspect, than merely being a matter of historical accident. They relate to how a judge approaches the task of avoiding an unforeseen moral conflict. As Section 3 aims to show, it is difficult to see how the reasons underlying a particular rule can, on their own—i.e., without first appreciating the moral significance of the facts of the case—justify the exception required to address such a conflict. It is only once an unforeseen moral conflict becomes apparent that equitable interpretation comes into play. Only after the “sudden risk” to which Aquinas referred becomes apparent, and the judge has accordingly formed an intention to act in an equitable way, can equitable interpretation get off the ground.

2.2 The Decline of Equity

For centuries, equity served as the standard approach to the justification of implicit exceptions in the law. Over time, however, equity went out of fashion. In England, although numerous factors may help to explain equity’s decline, two stand out. These could be viewed as two opposites of the same spectrum: unpredictability, on the one hand, and rigidity, on the other.

Equity was unpredictable because its dispensation varied according to the individual who held the office of the Chancellor.Footnote ³⁵ Pressed by its critics to be more law-like,Footnote ³⁶ by the seventeenth century, equity began transforming into precisely what it was never intended to be—namely, a rigid measure of adjudication.Footnote ³⁷ As some historians report, Chancellors would often require parties seeking equitable relief to cite a precedent supporting their claims,Footnote ³⁸ a practice that intensified by the eighteenth century.Footnote ³⁹ By persistently demanding precedents and adhering to them where applicable, these centuries saw the gradual development of a body of rules.Footnote ⁴⁰ The systematisation of these rules gave rise to what we recognise today as “Equity” (capitalised),Footnote ⁴¹ namely, a body of rules famously, though also controversially, defined by Maitland in terms of its jurisdictional origin.Footnote ⁴² But ‘Equity’, understood this way, has considerably moved away from its focus on implicit exceptions in the law. “The equity of the Chancery,” Salmond once wrote, “has changed its nature and meaning.”Footnote ⁴³ If we consider all the various meanings equity has received in law, and if we extend this semantic analysis to other areas of practical life, we will soon realise that the meaning of ‘equity’ is far from clear.Footnote ⁴⁴

Prey of its own history, equity was also discredited. In many civilian jurisdictions (with notable exceptions) equity plays a limited role in guiding behaviour.Footnote ⁴⁵ Some codified rules on statutory interpretation list equity as the last recourse available to a judge for interpreting statutes—only after the textual, historical, and contextual methods have failed to retrieve a rule’s meaning.Footnote ⁴⁶ Writing in 1905, Roscoe Pound claimed: “However severely and peremptorily equity … may be controlled and discredited, there is a reason to think its resurrection must constantly be waited for.”Footnote ⁴⁷ But is equity dead, as Pound suggested (i.e., one can only be resurrected if one has previously died)? As a theoretical approach to implicit exceptions, equity seems out of fashion, and it is also difficult to grasp its meaning. However, although our concept of the law may change,Footnote ⁴⁸ there seems to be a constant need to balance the predictability of canonically formulated rules with equity’s inherent flexibility. This may help explain why, despite its theoretical decline, equity found a way into the second half of the twentieth century—subtly, as a type of legal defeasibility. According to Frederick Schauer:

Equity, as Schauer claims, is the central form of defeasibility in law. If this view is correct, then despite its theoretical decline and being discredited as anti-scientific, equity found its way into mainstream analytical jurisprudence. In that sense, Pound was right in thinking that equity would one day resurrect itself. Strictly speaking, though, equity did not resurrect itself, because it never died; it only lay dormant until defeasibility scholars began grappling with some of the same evaluative questions that had worried equity scholars for centuries.

In the next section, I will explain the notion of defeasibility in law and explore how equity and defeasibility have come closer together as distinct approaches to the study of implicit exceptions in the law.

2.3 Defeasibility: The Modern Approach

After the traditional model of equity went out of fashion, a second, revitalised approach to the study of implicit exceptions in the law arose. As suggested before, it does not seem to be a coincidence that this second approach began to flourish at a time when many scholars regarded natural law theories as obscure in both purpose and methodology. The dispensation of equity often relied on a hierarchically superior norm providing the basis for overriding a legal rule. Precisely because an appeal to that higher norm typically involved first-order moral reasoning—frequently grounded in a specific religious or metaphysical outlook—it is not implausible to suggest that equity was viewed as anti-scientific by analytical legal positivists in the first half of the twentieth century. Defeasibility in law emerged amidst what was widely regarded by scholars as the correct and healthy approach to legal theory: a descriptive and value-free inquiry into legal concepts, legal practices, and legal institutions.

Although modern studies on legal defeasibility typically focus on legal rules or norms, the origins of this approach lie in the study of legal concepts.Footnote ⁵⁰ There is consensus that H.L.A. Hart was the first to use the term “defeasible” to describe the property of legal concepts whereby they may cease to be applied once certain events obtain.Footnote ⁵¹ According to Hart, it is not possible to define a legal concept by specifying the necessary and sufficient conditions for its correct application, as some of these conditions may hold in certain contexts but not in others.Footnote ⁵² For Hart, this impossibility shows that a legal concept, such as ‘contract’, is “irreducibly defeasible.”Footnote ⁵³ In Hart’s view, a full grasp of a legal concept requires knowing everything that follows after the word ‘unless’ which often accompanies the statement of its application conditions.Footnote ⁵⁴

It is telling that neither in “The Ascription of Responsibility and Rights” nor in The Concept of Law did Hart—despite his familiarity with the jurisprudential and ethical contributions of Plato and AristotleFootnote ⁵⁵ —use the term ‘equity’ in his discussion of legal defeasibility and the open texture of law.Footnote ⁵⁶ Hart’s analysis in The Concept of Law of the causes of law’s “open texture”—relative ignorance of facts and relative indeterminacy of aim—bears significant resemblance to what equity philosophers have sought to capture with the notion of a ‘problem of legislative foresight’.Footnote ⁵⁷ That is, the impossibility of anticipating every possible circumstance that might bear on the enactment of a statutory rule. Whereas in “The Ascription of Responsibility and Rights,” Hart proposed the notion of defeasibility to explain why legal concepts may apply in some situations but not in others—a proposal that, as Juan Carlos Bayón notes,Footnote ⁵⁸ he later rejected—in The Concept of Law, Hart’s explanation of how judges reckon with the open texture of law sparked one of the most enduring debates in jurisprudence. Nowhere in this framework do we find the notion of equity, as Richard Tur has rightly pointed out.Footnote ⁵⁹

What is significant is that, with Hart, the topic of implicit exceptions in the law regained the attention of both jurists and philosophers alike. Some scholars suggest that, in order to tackle the problem Hart sought to address with the notion of defeasibility, a new approach to deontic logic was developed. Working in the field of defeasible deontic logic, Carlos Alchourrón explains the broader problem of defeasibility as follows:

In law, Neil MacCormick distinguished between the “express” and “implicit” defeasibility of legal rules.Footnote ⁶¹ The former states “‘ordinarily necessary and presumptively sufficient’ conditions” of the state of affairs under regulation, while the latter suggests that the values and principles of a legal system may override some of its specific legal rules.Footnote ⁶²

This new terminology reflects a tendency to conceptualise defeasible conditionals in descriptive and value-free terms. Scholars working in this field have made significant theoretical contributions; for example, they addressed the issue, left open by Hart, of whether defeasibility applies to legal concepts, decisions, and/or utterances.Footnote ⁶³ They also differentiated the propositional analysis of the negative elements of defeasible concepts from their positive elements,Footnote ⁶⁴ and they clarified the burden of showing that a given conditional is defeasible.Footnote ⁶⁵

Over time, however, many pressing, rather evaluative questions were left unaddressed. Chief among these was the issue of the reasons, if any, for correcting a legal requirement by defeating it, who should have that power, and on which grounds it may be exercised. For this reason, it is plausible to think that a new trend emerged among defeasibility scholars who began engaging with these sorts of evaluative concerns. This turn can be seen, for example, in Richard Tur’s efforts to accommodate equitable considerations within the doctrinal body of English law; Michael Moore’s justice-based arguments for keeping the list of defeasible legal concepts open; and Fernando Atria’s defence of the judicial power to correct statutory rules on grounds of human dignity.Footnote ⁶⁶

To conclude this first part of the article, Section 2.4 will address an important question in the literature on legal defeasibility, particularly given its potential implications for the power of judges to deliver equity by suspending a rule’s binding legal requirement. I will argue that while the question is undoubtedly important, it can be bracketed on good grounds.

2.4 Is defeasibility an essential property of law?

Some philosophers, influenced by Hart,Footnote ⁶⁷ suggest that from the fact that every rule is subject to a list of unforeseeable exceptions it follows that defeasibility is an essential property of law.Footnote ⁶⁸ Let us call this thesis ‘strong defeasibility’.

Many proponents of strong defeasibility endorse the claim that legislators cannot anticipate every possible circumstance that might potentially bear on the activity under regulation.Footnote ⁶⁹ For this reason, a judge who applies a rule to an unforeseen case may encounter what Schauer famously described as an issue of the “over- and under-inclusiveness” of the rule.Footnote ⁷⁰ If a statute prohibits people from entering public hospitals with dogs to prevent noise, a judge might make an exception for a blind patient who enters with a quiet assistance dog. Although the dog falls within the letter of the rule, it falls outside of its underlying reasons—the dog makes no noise. Therefore, the rule is over-inclusive; its letter captures situations that, based on the rule’s underlying reasons, should be excluded. By contrast, a judge addressing a problem of under-inclusiveness may extend the rule’s scope to include someone who enters the hospital with a talking parrot. While the parrot falls outside the letter of the rule, it falls within its underlying reasons—the talking parrot makes noise.

Strong defeasibility holds that insofar as every rule is subject to some unforeseeable exceptions, it follows that defeasibility is an essential property of law. Opposing this thesis, Schauer has argued that the existence of legal systems in which officials do not actually defeat legal requirements shows that defeasibility is not an essential property of law.Footnote ⁷¹ According to Schauer:

On this view, because defeasibility is a function of judges’ powers and how they choose to exercise them, it follows that “defeasibility is not a property of rules at all, but rather a characteristic of how some decision-making system will choose to treat its rules.”Footnote ⁷³ Thus, “once we recognize that it is linguistically and conceptually possible for there to be non-defeasible rules, the inquiry shifts to one about the advantages and disadvantages of treating rules as defeasible.”Footnote ⁷⁴

This is a debate about the grounds of defeasibility in law. For proponents of strong defeasibility, law is essentially defeasible because something intrinsic to the concept of a rule—on which the law pervasively relies—renders any legal rule defeasible. For Schauer, however, that ‘something’ is not internal to the concept of a rule but rather external to it; it lies in the contingent fact of how a rule-applier decides to treat a particular rule—whether they decide to defeat it or not, regardless of whether the rule is conceptually defeasible. For Schauer, defeasibility is merely a contingent feature of law, not a necessary one.Footnote ⁷⁵

As noted earlier, this debate is relevant to corrective equity, but for obvious reasons it cannot be settled here. Fortunately, there is a way around it: One can offer arguments against the power to defeat legal requirements even if it turns out that the law is essentially defeasible—such that it may be doubted whether those reasons are doing any work at all. Conversely, one can argue in favour of the power of judges to defeat legal requirements (e.g., to exercise equity through an equitable suspension of the law) even if the law is not essentially defeasible. The question of whether the law is essentially defeasible can be addressed with significant independence from the question of whether there are sound reasons (grounded in value) supporting the power of judges to defeat legal requirements. This is the methodological assumption I will rely on in the next section. I will thus defend the value of an equitable power, while acknowledging that the question of whether the law is essentially defeasible remains open.

3.1 Unpacking Equitable Interpretation

Problems of legislative foresight do exist; they are not merely a theoretical presupposition relied upon by both supporters and opponents of equity, but are more generally a consequence or by-product of using canonically formulated rules to guide behaviour.Footnote ⁷⁶ With this assumption in mind, let us consider how a problem of legislative foresight typically manifests itself.

Suppose the following provision, Article 122 of a hypothetical Act Creating a Public Transport Service, is in force in your jurisdiction:

Put aside for a moment any disagreement you might have regarding the wording of this provision; such disagreement is, to some extent, part of the data to be treated as a given when studying equity. Article 122 reflects a policy that is common in many jurisdictions: Passengers are required to validate their tickets upon boarding public buses in order to prevent free riders from using the same (unvalidated) ticket multiple times. Assume that the policy is ultimately justified on several grounds, with cost-benefit considerations and general deterrence being the primary ones.

Now let us consider an unforeseen case. Suppose you board a public bus with your elderly father. You are aware of the rule in Article 122 and its sanction, but you wish to find a seat for your frail parent before validating your ticket. The bus is full and the few priority seats are occupied, so it takes longer than expected to accommodate him. On your way to the ticket machine to validate your ticket, you unexpectedly encounter a ticket inspector. The inspector requests your ticket, which is not validated. You offer your reasonable explanation, but he does not accept it. He has a legal duty under Article 122 and, with people observing, he is unwilling to make an exception in front of everybody. You receive a fine of £90.

You appeal to the county judge. In order to grant an exception on grounds of equitable interpretation, the judge would first have to consider the reasons the legislature had for enacting the rule in Article 122. The judge determines that the rule is neither inefficient nor morally objectionable; it is simply that the legislature did not anticipate your case. However, the judge concludes that this lack of legislative foresight is not enough to justify granting you an equitable exception from the application of the rule in Article 122. The £90 fine is upheld.

Supporters of equitable interpretation might argue that the judge should avoid the morally harsh result produced by the straightforward application of the rule in Article 122. By contending that the legislature would not have intended the rule to be applied in this way, had it anticipated your case, defenders of equitable interpretation might argue that an exception is justified by equitably constructing the rule in Article 122. According to Ekins:

In the example we are considering, let us assume, for the sake of argument, that your case is unforeseen and exceptional. Using Ekins’ terminology (which will be adopted for current purposes),Footnote ⁷⁸ the “reasoned choice” on which the legislature acted—the policy of preventing free riders, justified in turn by cost-benefit analysis and general deterrence—“comes apart” from the legislature’s “intended meaning”—i.e., from the meaning of the rule as formulated in Article 122. And because the two come apart, the reasoned choice is authoritative. Precisely because in Ekins’ view the reasoned choice is (already) authoritative and is not made authoritative by the judge, the judge only recognises an exception instead of making one. For Ekins, a statutory rule is binding only if it reflects the legislature’s intended meaning and no unforeseen and exceptional case obtains.

One thing that is unclear from Ekins’ claim is whether a case is exceptional and unforeseen because the reasoned choice diverges from the intended meaning or because its facts make it morally compelling for the judge to look beyond the intended meaning and assess whether they fall within or outside the reasoned choice. On reflection, however, the first interpretation should be resisted, because it leads to a self-defeating and practically unfeasible scenario. The scenario is self-defeating, first, because by testing whether the content of the intended meaning is actually faithful to the reasoned choice on which the legislature acted, the number of possible scenarios that such a test might return becomes so exorbitant that we lose any meaningful sense of calling these situations ‘exceptional’ and ‘unforeseen’. In fact, by the time we identify a case as exceptional and unforeseen, we are also, in quite a significant way, already anticipating it. The reading is practically unfeasible, secondly, because the test it leads to is simply impracticable for the judge who has a practical task ahead, namely, to decide the dispute in a timely manner.

The better interpretation is that, in the order of the factors that make a case exceptional and unforeseen, the facts of the case come first. Only after appreciating the moral and legal significance of those facts can the judge assess whether they are covered by the legislature’s intended meaning and, if so, how they relate to the legislature’s reasoned choice. If the judge thinks that the facts are indeed covered by the legislature’s intended meaning—such that, in principle, the rule ought to be applied—then the judge may proceed to determine whether they fall within or outside of the legislature’s reasoned choice. But why would a judge do this? Ultimately, it would be done to avoid an unforeseen moral conflict. Thus, it is both the facts of the case and the need to avoid moral conflict that direct the judge’s reasoning towards the legislature’s reasoned choice. If it is clear that the facts fall outside that choice—at which point we may finally say that the intended meaning and the reasoned choice have ‘come apart’—then an exception ought to be ‘recognised’.

In reality, though, there is almost no conceptual room for an exception to be recognised; more often than not the judge is required to make one. To claim that an exception ought to be recognised suggests that the exception is already part of the law, albeit one waiting to be carved out by the judge. On this view, the exception is not law that the judge creates, but law that the judge declares. But how can that exception be part of the law and ready to be recognised if, by the time it is needed, what is authoritative for the judge—at least under Ekins’ view—is not the reasoned choice on which the legislature acted, but the legislature’s intended meaning? Consider Ekins again:

If the legislature’s intended meaning (and not the legislature’s reasoned choice) is the central source of authoritative guidance for the judge, then unless we adopt the first interpretation of what makes a case unforeseen and exceptional (which, for the reasons previously discussed, we should not), it is difficult to see how the reasoned choice can ipso facto be authoritative for the judge when it comes apart from the legislature’s intended meaning.Footnote ⁸⁰ Unless—and this is my point—the judge exercises a normative power that enables them to alter the order of priority of the authoritative guidance received from the legislature. Without the exercise of such normative power, the judge’s initial legal position remains unchanged: The judge is bound by the legislature’s intended meaning. Only through the exercise of this normative power can the judge change their initial legal position. To think otherwise is to make legal ontology unnecessarily obscure. Only upon the exercise of this normative power does the legislature’s intended meaning cease to be authoritative for the interpreter, who is now bound by the legislature’s reasoned choice. Only now can the judge proceed to justify an equitable exception on the ground that it is part of the content of the law. Without this normative power, the exception is not a legal exception; it is simply an exception that may be morally supported.

Equity, therefore, requires the exercise of a normative power, even when it is dispensed through equitable interpretation. As Blackstone put it,

Yet the price of acknowledging the role of this normative power is that when the judge’s initial legal position changes, the resulting exception is not one that the judge has recognised, but rather one that the judge has made ex novo. By exercising the normative power in question, the input provided by the legislature’s reasoned choice becomes (not that it is, as Ekins misleadingly claims) input capable of grounding an exception in the law. In exercising this normative power, the judge makes the legislature’s reasoned choice authoritative now, and does so ultimately to avoid an unforeseen moral conflict. If the law provides for the exercise of this normative power, it authorises the use of a power to deliver corrective equity through equitable interpretation. This is why we may consider this specific power as an ‘equitable power’.Footnote ⁸² Without positive legal backup, the judge who changes their initial legal position by altering the priority of the authoritative guidance received from the legislature exercises a normative power that may be morally justified.

So Ekins cannot simultaneously claim that (1) judges recognise legal exceptions rather than make them, and (2) this recognition does not require a normative power allowing the judge to change their initial legal position in relation to the legislature. Either an exception is made ex novo by exercising an equitable power, or the exception is legal but at the cost of maintaining that both the legislature’s intended meaning and the legislature’s reasoned choice are authoritative for the judge at the same time. Yet this latter option would be at odds with Ekins’ overall approach to statutory interpretation.Footnote ⁸³ Even if Ekins subscribes to a view whereby not all legal content is exhausted by positive law, he must still explain how the legislature’s intended meaning, normally authoritative, becomes non-authoritative when an unforeseen case arises. Conversely, Ekins must also clarify how the legislature’s reasoned choice, normally non-authoritative, becomes authoritative.

What is needed, therefore, for the judge to equitably interpret a statutory rule in a way that respects the positivity of law is another positive rule authorising the judge to change, through the exercise of a normative power, their initial legal position in relation to the legislature. If equitable interpretation is to ground an exception in the law—thereby providing legal input to an equitable decision—the law must first authorise the judge to interpret the law equitably through the intentional exercise of this equitable power. The exercise of this power is, thus, a necessary condition for a judge to legally justify an exception on the grounds of equitable interpretation.

Therefore, a great deal comes down to whether the positive law has previously authorised the judge to exercise an equitable power. I will soon argue that there are two crucial reasons for the law to recognise this power. First, judges would not be required to decide contra legem or praeter legem (i.e., against the law or supplying the silence of the law) if morality demands an equitable outcome in a particular case. Second, the law has an opportunity to guide, authoritatively, how judges ought to deliver equity. By granting judges discretion to exercise an equitable power, the law does not provide them with an unfettered discretion. There are good reasons for placing conditions on how judges should exercise this power. What remains discretionary—and should remain so—is the decision whether to exercise the power in the first place. I will return to this issue in the final section.

Let us take stock. Under a sound approach to equitable interpretation, a judge qualifies the legislature’s intended meaning based on the legislature’s reasoned choice. This process requires the exercise of an equitable power enabling the judge to lawfully change their initial legal position vis-à-vis the legislature. However, a condition for the successful exercise of such a power is that the facts of the case indeed fall outside the legislature’s reasoned choice. In other words, the reasoned choice must support the equitable exception, typically by not ruling it out by implication. But what if the facts of the case fall within the legislature’s reasoned choice? This is the point at which, as I will now argue, equitable interpretation alone—i.e., unassisted by the positive law—may fail to deliver on what equity promises, namely, to avoid an unforeseen moral conflict.

Consider again our working example. By enacting the rule in Article 122, the legislature sought to give effect to the set of reasons on which it decided to act (the ‘reasoned choice’). The question for the interpreter is to determine which aspects of the potential normative input provided by the reasoned choice become authoritative once they exercise the equitable power. In our example, the reasoned choice can be presented through at least two layers of justification: preventing the use of unvalidated tickets by free riders and running a publicly funded service in a cost-effective manner while also ensuring general deterrence. Your case falls within the first layer of justification and is therefore unsupported by the legislature’s reasoned choice—unless it is part of that choice’s content to consider your intention (to validate your ticket) when you approached the machine. And the same reasoning applies to the second layer of justification; your case falls within the legislature’s reasoned choice unless its content allows the judge to take into account your intention through a sequence of external acts. We only need to adjust the example slightly for an equitable exception to be unsupported by the legislature’s reasoned choice. Suppose the inspector requested to see your ticket before you even had a chance to approach the machine; or assume that the evidence for your intention could be easily disputed—for example, simply walking towards the machine may not be enough to show that you intended to validate your ticket.

These are some of the difficulties with which supporters of equitable interpretation must grapple. It is not easy to show—in a way that is open, transparent, and straightforward—that the legislature’s reasoned choice ‘supports’ an equitable exception. The difficulty lies in the fact that such a ‘support’ imposes no particularly high threshold on the interpreter—in principle, anything not explicitly or implicitly excluded by the legislature’s reasoned choice is supported by it. As soon as we start picturing all the justificatory work that equitable interpretation may demand from judges, it becomes clear that, without the assistance of the positive law, this form of exercising equity could impose a significant burden on them. Hence law’s contribution to equity: The positive rule conferring the equitable power should help reduce the amount of normative input—and thereby potential legal indeterminacy—that the judge may otherwise derive from the legislature’s reasoned choice. It can do so, for example, by giving epistemic salience to certain facts relative to the reasoned choice—such as an official indication that, following the completion of the ordinary process of legislature’s will-formation, specific data should be treated as reflecting the reasoned choice for the purposes of equitable interpretation. The rule may give salience to the legislative debate while also placing conditions, like those found in Lord Browne-Wilkinson’s judgment in Pepper v. Hart, on how courts should rely on that data.Footnote ⁸⁴

The natural objection relates, of course, to the limitations of the law itself. If one of the issues that equity seeks to address arises from legislative foresight, then are we not proposing a rule that may backfire? The rule conferring the equitable power and setting out the conditions for its proper exercise could itself be affected by a problem of legislative foresight. And this situation would support the well-known argument, held by Blackstone and others, that equity cannot be fully captured by positive rules without being self-defeating.Footnote ⁸⁵ The objector may argue that, under the proposal here defended, equity could apply to the equitable power itself. Fair enough, but this argument also faces its own difficulties. First, we should not assume that every attempt to engage in equitable interpretation will necessarily give rise to an unforeseen case—that each positive rule conferring the equitable power will encounter problems of legislative foresight. In the same way that the positive law can reduce legal indeterminacy through its rules—despite a potential problem of legislative foresight—it can also reduce the level of indeterminacy that the legislature’s reasoned choice creates for the interpreter. And while it is conceptually possible that this guidance could be affected by a problem of legislative foresight, it does not follow that we should treat this exceptional situation as the standard case.

Secondly, the objection overlooks the significance of the law’s intent to preserve, through its rules and its claim to authority, its institutional and systemic character. There are good reasons for the law to assert its authority, even at the margins—that is, even when its limitations in regulating complex issues are made clear. With respect to implicit exceptions, these reasons concern, as I will discuss in more detail in the Conclusion, judicial discretion, judicial accountability, and the Rule of Law. It would be a significant failure, relative to these reasons, if the law were to abdicate its mission of seeking systemic and institutional regulation, leaving the solution of difficult problems to the ad hoc and patchy approach of individual judges.

To summarise: Not only can the positive law assist judges in engaging in equitable interpretation, but there is also value in doing so. All it takes is a positive rule conferring an equitable power and specifying the conditions under which judges may lawfully exercise it. At the same time, that rule can guide the judge in navigating through the normative input provided by the legislature’s reasoned choice. With this in mind, I now turn to equitable suspension.

3.2 Towards Equitable Suspension

The purpose of the second type of equitable power I want to defend is to enable the lawful exercise of an equitable suspension of a statutory rule. What is required is the identification of a hierarchically superior norm that can justify suspending the application of that rule in order to protect a sound moral consideration. Provided we can identify the source of such a norm and show how, within the framework of valid positive law, it may take precedence over the statutory rule in question, we can argue for an equitable power allowing the suspension of statutory law in a manner that respects the positivity of law.

It is admittedly more difficult to locate the source of that higher norm in a legal system characterised by the combination of a robust Parliamentary sovereignty and an uncodified constitution. That is the case in the UK, where the so-called “constitutional statutes” appear to carry no special juridical entrenchment beyond excluding the operation of the doctrine of implied repeal.Footnote ⁸⁶ Nevertheless, one potential line of justification involves identifying the constitutional content of a statutory rule—for example, the fact that it gives legal protection to a fundamental right—and showing that this content should take priority over that of a non-constitutional statute when the two are in conflict. While space constraints prevent me from pursuing this line of inquiry here, it is worth highlighting the increasing judicial support in the UK, especially since Jackson,Footnote ⁸⁷ for the view that by reason of their constitutional significance, certain Acts of Parliament are entitled to special protection by courts.Footnote ⁸⁸ Admittedly, these are significant constitutional obstacles that raise the possibility that, in a country such as the UK, the most appropriate way to exercise equity, all things considered, is through equitable interpretation.Footnote ⁸⁹

The case for equitable suspension is more straightforward in countries with a codified constitution. Provided that a judge can plausibly show how the application of a statutory rule creates an unforeseen conflict with a moral consideration that may be constitutionally grounded, the case for equitable suspension becomes clearer. On this view, although equitable suspension does involve a form of constitutional review of legislation by judges, it does not confer on them excessive powers, such as the power to strike down statutes. What is required with the equitable power I have in mind is merely a legal authorisation to suspend, temporarily and between the parties to the dispute only, the application of a statutory rule on grounds of equity. In relation to the constitution, Kelsen says:

If the moral consideration to be protected through an equitable suspension can be grounded in a constitutional provision, then the suspension Kelsen speaks of can be understood as an equitable power.Footnote ⁹¹ This authorisation is a legal one, and I argue that it provides the basis for the juridical form of the power to suspend the application of statutory law on grounds of equity. This power would neither affect the general validity of the statutory rule at issue nor create any law of general application upon which other parties may rely. Precisely because the effect of this power is relative rather than general, we can consider it equitable. By introducing it, the law does not alter the general effects of the statutory rule in question—which is a significant aspect of what is at stake in the power to strike down legislation. Instead, the law merely suspends the application of a statutory rule between the parties to the dispute, as a means of avoiding an unforeseen moral conflict.Footnote ⁹² Possibly the most compelling reason why this power is equitable is that the legislature has not anticipated the moral conflict it aims to prevent. By authorising this equitable power, the law acknowledges the legislature’s inability to foresee every possible circumstance bearing on the regulated activity, and it recognises that such inability may result in an unforeseen moral conflict. The law does so, crucially, without attempting to list—let alone exhaust—every potential source of moral conflict. By authorising this equitable power, the law acknowledges the limitations of its own institutions—which are, in a sense, its own limitations.

An example of an equitable power along the lines explored here can be found in the powers of the Chilean Constitutional Court.Footnote ⁹³ Under the Chilean constitution, a party to a dispute before an ordinary judge may request the Constitutional Court to authorise the judge to suspend the application of a statutory rule if its application leads to a conflict with a value protected by the constitution.Footnote ⁹⁴ If the Constitutional Court determines that applying this rule is indeed contrary to the constitution, the ordinary judge may lawfully suspend its application in that particular dispute. Finally, in line with Kelsen’s remarks, this suspension does not affect the general validity of the statutory rule; the rule, therefore, may be applied in subsequent cases.