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Conscience as the organising concept of equity

Hudson, Alastair (2016) Conscience as the organising concept of equity. Canadian Journal of Comparative and Contemporary Law, 2. pp. 261-299.

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Abstract

This 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 identified 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. This 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. The 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. This 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. The centuries-old arguments about the efficacy of equity turn on this understanding of a conscience and they can be resolved by reference to it.