ABSTRACT
Equity has traditionally been understood as a judicial corrective to the generality of statutory law caused by the limited foresight of legislatures. Because of the ad hoc and corrective character of equity, many scholars have seen a tension between the morality of equity and the positivity of law. Equity, John Gardner once suggested, is ‘justice’s rebellion against law’ – insofar as the positive law does not usually authorise the exercise of equity by judges. In this article, I argue that while the exercise of equity requires the exercise of an equitable power, there are good reasons for the law to allow this power. I do so while showing the conditions under which the law could implement the two main historical ways of exercising equity in adjudication. These are equitable interpretation and equitable suspension of the law. In defending this argument, I also offer a brief historical sketch of equity and its connection with the modern approach to the study of implicit exceptions in the law: legal defeasibility.
Lewis, Sebastian, Grounding Equitable Powers (December 16, 2024). Accepted for publication in the Canadian Journal of Law and Jurisprudence.
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