Monday, April 6, 2015

Campbell on 17th-Century Equity Law--for Non-Lawyers

Joseph Charles Campbell, University of Sydney Faculty of Law, has posted The Development of Principles in Equity in the Seventeenth Century: An Introduction for Non-Lawyers:
When an identifiable Court of Chancery emerged in the fifteenth century it supplemented the common law by using the notion of conscience. Its account of conscience derived from Thomist ethics, and was that the requirements of conscience in a particular fact situation were derivable from what the law of God and nature required to be done, which was objectively knowable. The English Reformation led to conscience losing its objectivity, because different understandings of scripture emerged from individuals having access to the Bible in English and interpreting it for themselves. in the course of the seventeenth century Chancery ceased to apply the notion of conscience directly, and increasingly articulated principles and rules that were applied to decide what behaviour was required. This process was assisted by numerous diverse contingent historical events and trends. Because all the equitable principles and rules developed in the context of an adversary system of litigation, with issues arrived at by pleading, the principles and rules did not take the form of a simple proposition that behaviour of a certain type was required in a certain situation. Rather, the principles and rules led to a conclusion that an equity, or claim, to require behaviour arose in a particular type of situation. Whether the court actually required that behaviour to occur depended on whether there was a better equity.