Equity, Justice, and Conscience

This chapter assesses whether equity employs a distinctive moral criterion when it intervenes in people’s legal rights. It offers a different account about the extent and justification for the way in which English equity maps onto Aristotle’s second sense of equity. Combating the stickler for justice is a legitimate reason for state coercion, but it explains only a small number of equitable doctrines, for example estoppel and mistaken payment. Working within a Kantian framework, the chapter argues that the state is justified in forcing on some claimants an ethical duty to refrain from sticking to their rights in a bad way in order to protect the legal system from the damage this practice may cause. But while equity’s interventions in the parties’ rights in Aristotle’s second sense are legitimate, they are too few and far between to be counted as the intellectual foundation that sets equity apart from the common law.