W101 – Equity: introduction

Unit 7 of W101 introduces equity. Equity is a part of the common law and is another source of law as mentioned before. Equity is a queer creature; described as a combination of “philosophy, social justice and legal doctrine and procedure”, equity has a long and rich history. The learning outcomes for this unit are:

Learning outcomes

After studying this unit you should be able to:

• describe equity’s philosophical foundations
• consider equity’s present place and role in the common law jurisdiction of England and Wales
• discuss some of equity’s key areas of intervention within the common law system, e.g. remedies
• describe key historical points in the development of equity
• discuss extra-legal concepts and their relationship to equity, e.g. justice, fairness and conscience.

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Equity was described by Aristotle as:

"When the thing is indefinite the rule is also indefinite, like the leaden rule used in making the Lesbian* moulding; the rule adapts itself to the shape of the stone and is not rigid, and so too the decree is adapted to the facts."

*A lesbian rule is a flexible rule used to draw smooth curves.

Photo of a Lesbian rule courtesy http://douglasbgibson.tumblr.com.

In other words, equity is flexible enough to find a solution that fits the problem. We will see how this works during this unit. Keep in mind that equity is both a foundational principle in legal philosophy as well as an ideal of social justice. Given that equity was recognised by Aristotle (384 – 322 BC), we can see that equity goes back more than 20 centuries! Of equity, Aristotle also said:

"Equity bids us be merciful to the weakness of human nature; to think less about the laws than about the man who framed them, and less about what he said than about what he meant; not to consider the actions of the accused so much as his intentions; nor this or that detail so much as the whole story; to ask not what a man is now but what he has always or usually been."

This excerpt demonstrates that equity can be divided into three broad but related categories which together form a starting point for thinking about equity. Equity is:

• a set of philosophical principles
• an ideal form of social justice
• a branch of legal doctrine and procedure.

© The Open University

The most accurate representation of equity in the 21st century is the last of the above – as a form of legal doctrine and procedure – as it follows rules and precedent much as the common law.

Next: what is equity?