Conscience as the Organising Concept of Equity

• Author: Alastair Hudson
• Position: Professor of Equity & Finance Law, University of Exeter National Teaching Fellow
• Pages: 261-299

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(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.

262

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

Culture

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

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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.