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Plymouth Law Review

Darren Lee

Document Type

Graduate Article

Abstract

This article critically explores the evolution and interaction between equity and common law within the English legal system, particularly in light of the Judicature Acts of 1873 and 1875. These Acts aimed to harmonise the procedural aspects of both legal traditions but initiated an ongoing debate regarding their substantive integration. Central to this research, is the argument that equity should function primarily as a meta-law, refining and enhancing the fairness and justice of common law default rules, before addressing novel legal dilemmas that these rules fail to adequately resolve. The research finds a dynamic role for equity: initially acting as a corrective force to adapt and improve common law principles, making them more equitable. This involves equity stepping in to rectify or address injustices and inefficiencies within the common law framework, thus serving as a foundational layer that informs and evolves the default legal rules. However, once equity has corrected a specific legal issue, this thesis advocates for these equitable principles to be assimilated into the common law's default rules, rather than persisting as separate equitable exceptions. This article argues that such an approach allows equity to fulfil its historical role of ensuring fairness while promoting a more integrated and coherent legal system. By embedding equitable corrections and innovations into common law, the legal framework becomes inherently more just and responsive to changing societal needs, without the necessity for constant equitable intervention as an exception. Furthermore, the research concludes that while procedural fusion under the Judicature Acts has been largely successful, substantive fusion remains elusive due to the ongoing necessity for equity to act as a standalone mechanism for justice in new or unresolved legal scenarios. This necessitates a re-evaluation of the fusion debate, suggesting a model where equity continually informs and refines common law, but also retains the flexibility to act independently when new injustices arise that are not yet covered by the common law. Ultimately, this article posits that for equity and common law to contribute effectively to a fair and just legal system, equity must both shape the common law from within as a meta-law and stand ready to address unforeseen legal challenges, but with the goal of eventually integrating these solutions into the common law framework, thereby minimising the reliance on equity as an exception.

Publication Date

2024-01-01

Publication Title

The Plymouth Law Review

Volume

17

Issue

1

First Page

98

Last Page

126

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