On Tradition and the Conservation of Equity

Abstract

This paper explores the question whether the normativity of tradition gives us reasons to preserve the norms of equity (more or less) in their historical form, i.e., as separate from neighboring common law doctrines. The main target of the paper are arguments that call for the replacement of equity with other, arguably more successful, means for attaining the goals equity sets to achieve. It begins by showing that even liberal, progressive and rationalist people should see traditions as making a normative claim on us, as they can potentially possess both instrumental and non-instrumental value that goes over and above the content of the beliefs, rituals or forms of action which they uphold. The second part asks whether equity qua legal tradition exemplifies such value. I find that the unique combination of legal and moral tradition that we find in equity endows it with a great value as an agent for social cohesion, an instrument of coordination and a source of invaluable know-how knowledge. With reference to two concrete examples of alternatives to equity—the continental doctrine of abuse of rights and a good faith principle—I argue that the fact that equity has been the way we do things around here for so long makes it a better platform for reform than an implant from foreign system or a newly devised set of norms. If reform is needed, we should take equity as its starting point rather than wiping the slate clean and starting from scratch.