Historical Overview

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 1-11

HISTORICAL

OVERVIEW

A.

A

BRIEF

HISTORY

OF

EQUITY

This overview begins with

a

brief history

of

equity,

and

concludes with

some observations

on the

state

of

equity jurisprudence

in

Canada.

Most

legal

systems

present

a

paradox.

The

very

raison

d tre of a

legal

system

is to

provide

a

just ordering

and

moral guidance

to the

cit-

izenry. Such

a

goal places

a

premium

on

universality

and

certainty

— a

citizen

needs

to

rest secure

in his

knowledge

of the

application

of

laws

and

legal principles

before

undertaking activities

or

entering into

adju-

dication.

The

paradox

is

that slavish attention

to

rules

and

principles

can

itself perpetuate

an

injustice.

As any

human rights lawyer will

attest,

nothing

is

more unjust than

the

application

of a

principle

of

equality

in

disparate

situations.

It was

against

a

background

of

extreme

common

law

rigidity

and the

need

to

ameliorate

its

consequences that

the

principle

of

equity

developed.1

Prior

to its

transformation between 1700

and

1800,

the

common

law

had

grown inflexible

in

both procedure

and

substantive law.

The

former

was

controlled

by a

writ system which demanded that

litigants

frame

their disputes within

a

known class

of

actions;

the

latter,

by a

1 The

picture

of

equity

presented

here

follows

an

Aristotelian

approach:

see,

Nicomachean

Ethics

rev. ed.,

trans.

H.

Rackham

(Cambridge,

Harvard

University

Press,

1968)

Book

V, c. 10.

1

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