Conscience as the Organising Concept of Equity

AuthorAlastair Hudson
PositionProfessor of Equity & Finance Law, University of Exeter National Teaching Fellow
(2016) 2(1) CJCCL
Conscience as the Organising
Concept of Equity
Alastair Hudson*
is 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
a coherent central principle for equitable doctrines. Equity is based on a methodology
identied by Aristotle in his Ethics which seeks to mitigate the rigour of abstract rules,
and also 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.
is understanding of a conscience is a commonplace across our culture in sources as
disparate as the work of Freud and Kant, in Shakespeare’s King Lear, and in Walt
Disney’s Pinocchio. e conscience is the internal policeman which is planted in our
minds by our interactions with the outside world. Consequently, when a court judges
in the name of conscience, that court is holding up the individual’s behaviour to an
objective standard. is conceptualisation of conscience and of “unconscionability” is
shown to be the common thread running through the law on dishonest assistance, secret
trusts, bribery, proprietary estoppel, ownership of the home and so on. e centuries-old
arguments about the ecacy of equity turn on this understanding of a conscience and
they can be resolved by reference to it.
* Professor of Equity & Finance Law, University of Exeter National
Teaching Fellow.
Hudson, Conscience as the Organising Concept of Equity
I. I
II. R
A. All at Glitters is Not Golden
B. e Intellectual Roots of Equity
C. e Sublime Conscience
III. C  “U”
A. e Argument
B. From “Unconscionability” to Conscience
C. Dening “Conscience”
D. e Conscience as an Objective Phenomenon
1. Conscience in the Psychology Literature
2. e Ubiquity of the Externalised Conscience in our
E. e Objective Conscience at Work: Dishonest Assistance
F. Equity as a Methodology
G. Discretion in Equity
IV. E: C  T  C
A. e Obfuscation of the Equitable Roots of Condence in
English Law
B. e Continued Rude Health of the Equitable Doctrine of
Breach of Condence
C. A Stronger Equity Outside England: the “Obligation in
Conscience” in Spycatcher
V. B O: L  M
A. Conscience, Unjust Enrichment, and Politics
B. Bribery
VI. T  H
VII. C
I. Introduction
There has only ever been one real argument about equity. It was
running in the sixteenth century and it is still running today. Either
one considers equity to be open-textured and just, ideally suited to a
world of constant change and unexpected challenges; or one sees it as
(2016) 2(1) CJCCL
an enemy of order in the law, especially at a time when society needs
certainty in its rules. at argument might have begun as a jurisdictional
dispute between medieval courts, it might then have morphed into a
dispute about whether courts of equity should have open discretion or
operate a system of precedent, and it might then have refocused on the
viability of the idea of “conscience” for the last four hundred years, but
the modern arguments about constructive trusts, restitution and so forth
are in essence that same argument in dierent clothing.
is argument is said to have begun in the reign of Henry II when the
Lord Chancellor acquired a jurisdiction beyond the Council to dispense
judgments which began increasingly to disagree with the common law.1
is ght for territory reached its peak when Lord Chief Justice Coke
argued with Lord Chancellor Ellesmere about whether the judgments
of equity should take priority over the common law. is resulted in the
judgment in the Earl of Oxford’s Case,2 which set the foundations of an
English equity which combined Aristotle’s model of equity with the idea
of conscience, both of which are considered below. Subsequently, the
argument shifted to a suspicion of the discretion which the numerous
courts of equity3 deployed in the name of conscience. It was argued that
the courts of equity were not bound by precedent at one time.4 Richard
Francis began his Maxims of Equity,5 published in 1739, by confronting
the assertion that decisions of courts of equity were “uncertain and
precarious”6 because they were “not … bound by any established Rules
or Orders”.7 His answer to this charge was that conscience would not
cause judges to act arbitrarily but rather that each of those judges would
1. See George Spence, e Equitable Jurisdiction of the Court of Chancery
(London: Stevens and Norton, 1846) at 117.
2. (1615), 21 ER 485 (Ch) [Earl of Oxford].
3. ere were several courts of equity: the Court of Chancery, the Court
of Requests, the Court of Star Chamber and several other courts which
dispensed equity.
4. Mitch 31 Hen Hen VI, Fitz Abr, Subpena pl 23 (as Fortescue CJ declared
in 1452 “[w]e are to argue conscience here, not the law”).
5. Richard Francis, Maxims of Equity, 2d (London: Lintot, 1739).
6. Ibid at 197.
7. Ibid.

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