In this paper, I examine the role that conscience plays in an account of Equity as a distinctive area of doctrine, principles and rules. Historically, appeals to conscience in equitable reasoning were common place. Contemporary equity scholars, like Irit Samet, maintain that conscience remains at normative and conceptual core of Equitable reasoning. In her recent book, Equity Goes to Market, Samet argues that Equity’s role is to ensure that law tracks the demands of conscience: law and equity combined require us to do ‘the right thing’. On Samet’s account, conscience is the inner voice that an ordinary person ought to have if she is a well-functioning moral agent.
This paper offers a critique of the view that Equity appeals to morality writ-large – what I call conscience without filters – and defends a different view of the nature and role of conscience in Equity. Equity’s conscience is conscience with a filter: the conscience of an officeholder with filters that admit only the kinds of reasons, and the sequencing of reasons, appropriate to that office. The office of the judge as an agent of Equity generates filters that account for Equity’s special concern with the integrity of a system of private rights and the limited attention Equity pays to the broader pool of moral values that unfiltered conscience might properly respond to.
Katz, Larissa M, Conscience With a Filter (February 20, 2020). Jerusalem Review of Legal Studies, 2020.