In an essay titled ‘Justice, Equity and Good Conscience’, Duncan Derrett notes the difficulties that plague a discussion of a concept whose contours are vague:
“It may be argued at the outset that ‘justice, equity and good conscience’ is a nice, comfortable formula meaning as much or as little as the judges for the time being care to make it mean. One might confine one’s activity to considering how judges have in fact construed the direction to consult it. The results would not be of permanent value, since just as the concept of public policy varies with the years and the venue, so precedents may be of little help where this phrase is called into play.
Let us agree at once that stuff of the judicial applications of the ‘residual’ or ‘repugnancy’ references has limitation. Very few cases show a real curiosity as to what the phrase means, many expressions fall per incuriam, and consequently are of no authority. But a survey of some representative application of the formula, and a review of its extraordinary history, may help to place the matter in perspective, showing that it still has a lively part to play in the development of the legal systems of developing countries.”[1]
Equity and Romano-canonical origins
It is a common misconception that the term ‘justice, equity and good conscience’ has its origins in English law. Sir George Rankin succinctly stated that the origins of ‘justice, equity and good conscience’ did not point to English law.[2] Instead, Romano-canonical learning, which was common to the European continent and appeared later in English minds of the sixteenth century, forms the genesis of the concept.
In his seminal work ‘Ethics’[3], Aristotle considers the relations between equity and justice. Although equity is not identical to strict justice, it is nevertheless a kind of justice. To him, where the written statute is unequipped to address the particular circumstances of the case and point to a truly just outcome, aequitas (i.e. equity or fairness) steps in. Adherence to the written law may lead to an unjust outcome.
In this view, where certain factors place the facts of a case on a different pedestal, such as public policy, it would be unjust to impose the strict legal outcome of generally expressed laws. Consequently, a departure from the written law is (according to Aristotle) permissible.
This departure served the specific purpose of elevating certain considerations that inform a factual matrix in order to arrive at a just and equitable conclusion. This notion was an inspiration for and foundation of the Western legal tradition of equity.[4]
Derrett documents that the above notion influenced Romanic propositions in two ways:
(i) aequitas served as an ally in the interpretation of statute law to correct, modify and if necessary, amend it; and
(ii) to make good the deficiencies of the written or otherwise ascertainable law.
To this end, the role of equity was formulated as follows:
“If we see iustitia [justice] as the correlative of aequitas, then iustitia consists of positive law, made up of written and unwritten sources, statutes and customs, the applicability of these being determined either by positive law itself, or by the natural equity, that is to say, the natural reason of the case.
But in another sense aequitas comes into the picture of iustitia. There can be no ius in practice without its twin, the aequitas in sense (i) which modifies or amends it to suit circumstances. Ius strictum, or summum ius, the ‘letter of the law’, can very seldom, if ever, move without the aid of aequitas, ‘equity’. Thus, in sense (i) aequitas is bound up with Justitia, and yet seems to be by definition an addition to it ab extra.
In the second sense of the term, aequitas fills the gaps left by the positive law. It supplements the ius scriptum sive non scriptum for cases not covered by statute, for example, or contemplated by custom is so many words. In sense (ii) aequitas is the most important source of law, particularly for developing countries. Aequitas in this sense is both scripta and non scripta”[5]
The correlation between law and justice was the defining factor– in one sense, equity modifies the applicable law or ensures its suitability to address the particular circumstances before a court to produce justice. The modification of general rules to the circumstances of the case is guided by equity, not in derogation or negation of positive law, but in addition to it. It supplements positive law but does not supplant it.
In a second sense however, where positive law is silent as to the applicable legal principles, equity assumes a primary role as the source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus, where no positive law is discernible, courts turn to equity as a source of the applicable law.
In addition to these, Derrett notes that there is a third sense in which equity or aequitas assumed importance – where established political authority is taken away or is in doubt and the formal sources of law are in doubt, the nature of judicial office requires a decision in accordance with ex bono et aequo. This was evidenced in decisions concerning widows and orphans and in the realm of mercantile law.
In all three senses noted above, equity offered judges the discretion to marry general principles of law and the particular circumstances before them to arrive at a just decision. However, this discretion was not unbridled. Derrett rightly notes:
“What did this jurisdiction amount to? Did it mean that the judge followed his nose, and gave judgment according to his fancy? No…it is emphasized again and again that the judge consults analogous provisions of law; juridical maxims, in particular those contained in the Corpus juris,
even though they have not in fact been applied to such a case in the written sources of law or equity; and the writings of jurists steeped in legal thinking. … …The first step will be to see whether the other provisions of the code throw any general light on the problem. This implies an interpretation of ius scriptum…Thus equity in very many cases involves consultation of law”[6]
In this sense, positive law and the general principles furnished by positive law serve as a useful guide in ensuring that equity is not a method of giving effect merely to the individual worldview of judges. Where positive law is silent and equity steps in to furnish a source of law, its content is informed by analogous provisions of the law that furnish a useful guide. This ensures that equity operates within a larger legal framework informed by the values which underline the legitimacy of the legal system as a whole.
[1] Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
[2] Sir George Rankin, The Personal Law in British India, Sir George Birdwood Memorial Lecture on 21 February,
1941
[3] Aristotle, Ethics, JAK Thomson (trans) (London, Penguin, 1976) at pages 198–200
[4] Max Hamburger, Morals and Law: The Growth of Aristotle’s Legal Theory (1965).
[5] Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 120
[6] Dr J Duncan M Derrett, Justice Equity and Good Conscience in Changing Law in Developing Countries (JND
Anderson ed.) at page 123