Document Type

Article

Publication Date

2015

Abstract

As used today, the term “equity” connotes a variety of related, but nonetheless distinct, ideas. In most contexts, equity refers to the body of rules and doctrines that emerged in parallel with the common law, and which merged with the common law by the late nineteenth century. At a purely conceptual level, some trace the term back to Aristotle’s notion of epieikeia, or the process of infusing the law with sufficient flexibility to avoid injustice. Lastly, at a largely practical level, a few treat equity as synonymous with a set of remedies that courts can authorize, all of which are characterized by being “extraordinary” and “discretionary” in form and substance.

While equity is often understood as either a repository of substantive rules and doctrines, or, more generally, as a parallel court system that developed in seventeenth and eighteenth century England with its own set of procedural rules and uniquely discretionary remedies, this understanding is incomplete in one important respect. Equity also represents a distinctive approach to legal reasoning within a primarily statute-centric area of law, involving an increased role for courts in the lawmaking process and a ready recourse to a set of ethical principles that are presumed to be normatively superior to the strict letter of the law. In the traditional common law this use of equity came to be known as the process of “equitable interpretation” or as determining the “equity of the statute.” Used in this conception, it authorized courts to extend or restrict the otherwise clear words of a statute to give effect to the statute’s “ratio or purpose.”

Disciplines

Banking and Finance Law | Intellectual Property Law

Comments

Copyright © 2015 Penn Law: Legal Scholarship Repository.

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