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CONSCIENCE AS THE ORGANISING CONCEPT OF EQUITY
Conscience, equity and the court of chancery in early modern england. This study tackles the subject of the place of conscience in the development of english equity.
Equity is based on a methodology identified by aristotle in his ethics of mitigating the rigour of abstract rules and on the idea of conscience. Contrary to most of the assumptions made in the academic commentary on equity, a conscience is an objectively constituted phenomenon.
Throughout these periods, equity progressively developed from the chancellor providing equitable relief at his own ‘conscience’, through to an established and organised body of law whose principles are governed within the courts.
Understanding that a conscience is something that is objective helps us to understand in turn that what the courts of equity are doing is to measure the defendant.
Overseen by the lord chancellor, equity became one of the twin pillars of the english legal system with the court of chancery playing an ever greater role in the legal life of the nation. Yet, whilst the chancery was commonly - and still sometimes is - referred to as a 'court of conscience', there is remarkably little consensus about what this actually means, or indeed whose conscience is under discussion.
Conscience as the organising concept of equity alastair hudson* this article sets out a defence of the concept of equity based on conscience by tracing its development from the earliest cases, by establishing that a conscience is something objective and not subjective, and by demonstrating that the idea of conscience provides.
Statutory duties of tribunals - act with equity, good conscience - substantial merits of the case procedural fairness - natural justice - right, fair, honest - conscientious.
For centuries, courts of equity have intervened to set aside contracts and other dealings because of unconscionable conduct, that is— “conduct on the part of a party who stands to receive a benefit under a transaction which, in the eye of equity, cannot be enforced because to do so would be inconsistent with equity and good conscience.
However, 'conscience' and 'equity', when used of 'courts of conscience' and 'courts of equity', in particular, the court of chancery, seem to be particularly prone to attract the assumption that the words when used in a legal context have their 'ordinary natural' meaning.
Equity from the fifteenth to the nineteenth centuries as jutwa- posed with conscience's meaning.
'the court of public opinion is a court of conscience and morality. Mahatma gandhi once said that there is a higher court above the court of justice, and that is the court of conscience.
Klinck focuses on the concept of conscience, but generally uses equity only as a synonym for the chancery and its jurisdiction. Given current legal history suggests a shift from the idea of conscience to equity at some point in the period (4), this is unfortunate.
Page 15 principle of conscience in the equity courts consideration of the actual form of the action, and no search is required as is sometimes thought to be necessary in english law, for an imputed contract on which to rest the claim. 43 professor lee observes suggests that the doctrine of unjust enrichment should be confined to cases where there is an antecedent relation between the persons concerned, if the doctrine is to be kept within reasonable limits.
His conclusion about the chancery in the late-seventeenth century is the same as macnair: conscience is defined by “what the courts of conscience do” (macnair, “equity and conscience”, 680).
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