ABSTRACT
Like many before us, we will use ‘Equity’ to refer to Maitland’s Equity: the body of rules administered by the Chancery. By contrast, we use ‘equity’ to refer to the correction of the law in the furtherance of justice. Many jurists in the common law tradition equate Equity with equity: they may unconsciously assume that all equity comes from Equity, that everything that comes from Equity is equity, or both. On that view, the Judicature Act reform, and similar reforms in other common law jurisdictions, could have serious and possibly grievous effects on equity. We do not hold that view. equity is well-known in the civilian tradition and this helps us to see what should be plain even within the common law tradition: that Equity and equity are different. We believe that the Judicature reforms helps us to see this more clearly. Our aim is to understand an equity that is not exclusively tied to Equity (although it is certainly related to it): it is found in the common law and in the civil law. And 150 years after the Judicature Acts, this is an equity that we should celebrate.
Smith, Lionel and Popovici, Alexandra, equity is not Equity (August 1, 2023).
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