Title

What is Distinctive about the Law of Equity?

Authors

Jennifer Nadler

Document Type

Article

Publication Date

1-22-2021

Source Publication

Oxford Journal of Legal Studies

Abstract

What is distinctive about the law of equity? In his lectures on equity, Maitland argued that the answer to this question is ‘nothing’. As the editors of Philosophical Foundations of Equity note in their introduction, Maitland’s view was that equity is just a body of judge-made law that originated in a particular court, and its distinctiveness was therefore abolished by statute in the 19th century. If Maitland was right, equity describes a body of law united only by historical circumstance; accordingly, any attempt to elucidate its philosophical foundations would be entirely misguided.

Many of the contributions to this collection of essays are united in arguing that Maitland was wrong, that there is something conceptually, not merely contingently, distinctive about the law of equity, and that equity therefore has a distinctive philosophical foundation that might be uncovered and understood. This is the view that gives this collection its title and its purpose. However, other contributors to this collection are either explicitly or implicitly sceptical about equity’s conceptual distinctiveness and are therefore explicitly or implicitly sceptical about the book’s fundamental aim. In this review article, I elucidate this sceptical challenge and consider whether or not the contributions to the collection answer it. Concluding that the sceptical challenge has not been adequately answered, I set out a view of equity’s distinctiveness and philosophical foundation that draws upon, but moves beyond, this rich and diverse collection of equity scholarship.

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