Traditional Typology of Equity

Abstract

The chapter critically assesses the traditional distinction between three types of equity: equity infra, praeter, and contra legem. It argues that while this taxonomy offers a conceptual framework to help comprehend three roles that equity can assume, it remains a heuristic construct; strict divisions between different kinds of equity are unsustainable. In addition, the traditional breakdown of equity fails to account properly for the relationship between contra legem equity and law. Against this background, the chapter reviews a classic example of contra legem equity in Antigone and revisits the concept. It concludes that ultimately the most important limitation of the tripartite typology is that it does not account for the fact that equity may never truly function contra legem, since equity is an element of law.