Essay

The distinction between common law and equity rests on the

idea that the latter jurisdiction is guided by a vague
understanding of conscience

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Common law is actually set of laws that are used by courts to pass on any case in

court by judges, customs of society and principle depends on it, and it is used in

those situations which is not covered by civil law.1 The term common law is set of

principles which are used by courts in making decision for any case and the common

law system is the legal system which has a huge impact on the decisions of jury. 2

Equity on the other hand is derived from common law and it means being fare and

not being biased in any case. It is used to reduce the harshness and limitations of

common law, is used by the courts to give a proper decision, for the law of equity

courts of chancery were set up by the king to provide remedy for common law. 3

Jurisdiction is the practical body of court which pass decision and determine the case

in the light of different laws.

Conscience is your gut feeling which usually says that you should do right things and

avoid wrong things. It is the feeling which makes you feel guilty when you do

something wrong.4

The distinction between common law and equity exists due to their different criteria

of judgment and we can say common law was very limited in some cases it is

because common law was actually judgment based law and it evolved as law of

judgment in which the head of the government is king and he is the one who decides

the outcomes of cases. At that time royal courts administrated common law and was

the only law to be followed throughout the England. At that time king was the
1
Team, C. (2019). Common Law - Definition, Meaning, Examples, Crimes, and Cases. [online] Legal
Dictionary. Available at: https://legaldictionary.net/common-law/.
2
Ibid.
3
Law.com Legal Dictionary. (n.d.). Legal Dictionary - Law.com. [online] Available at:
https://dictionary.law.com/Default.aspx?selected=646 [Accessed 18 Feb. 2020].
4
Cambridge Dictionary (2019). CONSCIENCE | meaning in the Cambridge English Dictionary. [online]
Cambridge.org. Available at: https://dictionary.cambridge.org/dictionary/english/conscience.

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supreme leader of courts and all the decision were made by him and his courts,

people used to go to king for justice where they modify the decisions made by

common law courts according to their own interest and ultimately this leads to an

injustice and problematic judgment system for people at that time. Not only but

common laws were limited in several cases, at the end their judgment usually could

be to award money as a fine or recovery of property, they were not ready to deal

with upcoming problematic situations for they were only limited to this domain.

Common law didn’t have the ability to correct huge amount of wrongs. People were

helpless at that time because common law did not pass judgments according to

individual’s intentions. It not only considered the rights of the property to be

unconditional but once the ownership or title of any property or anything is

transferred to any person it cannot be regained because it was considered as

absolute once transferred cannot turn back. 5 So these were one of the few

limitations that common law had, on the contrary equity was evolve and it soon

developed to minimize the harshness of common law and to give individuals fare

and just judgments. Equity sounds opposite of common law but actually it is not, it

only gives a fare justice where common law seems to be injustice.6 Courts of equity

offer multiple remedy for individuals seeking justice which includes cancellation of a

contract, injustice (prohibiting from a certain act) etc. It can grant relief to individuals

on every situation where common law failed to do so.

We cannot say equity to be totally different from common, common law is the which

makes general rules and act on them while equity being a sub branched of a tree

5
Lawaspect.com. (n.d.). The differences between common law and equity. [online] Available at:
https://lawaspect.com/differences-common-law-equity-2/ [Accessed 19 Feb. 2020].
6
Ibid.

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which is common law, keeps balance and check on common law, both are relatable.

Equity which rests on the idea of conscience.7 For Aristotle equity is “superior to

justice”, for him it can change errors made my judiciary in individual’s cases, because

it involves the use of conscience but not set of rules and regulations. 8 The main

purpose of making of equity (Court of Chancery) is:

“Men actions are so vast that it is in appropriate to make a general rule to measure

the extent of every particular act, and it is impossible that it may not fail, because

actions are so intense and diverse.”9

Kant states conscience as “Conscience is part of every human being, it is the inner

voice which we can say is gut feeling and it distinguishes between right or wrong, it is

not that something he makes by his own, but it is incorporated into his being and

follows him everywher.”10

Jurisdiction is actually the power which implements decision for any case, it is

actually the whole legal body or system which works according to the principles and

defined set of law to determine any outcome. Use of conscience in jurisdiction is

something different from conventional judgment used by judges.11

Lewis quoted in Table Talk (1965) on equity and its nature, “Equity in law is sacred as

spirit is for religion, what everyone is trying to make they go with inner feeling, may

be according to the law or may be according to the court rule.” For equity is the
7
Hudson, A. (n.d.). “CONSCIENCE AS THE ORGANISING CONCEPT OF EQUITY.” [online] Available at:
https://pure.strath.ac.uk/ws/portalfiles/portal/72239063/Hudson_CJCCL_2016_Conscience_as_the_o
rganising_concept_of_equity.pdf [Accessed 19 Feb. 2020]
8
Ibid.
9
(1615) 1 Rep. Ch.1
10
I.Kant, Metaphysics of Morals (1797), Cambridge University Press, 1996, 189.
11
Franchini, G. (2000). Conscience, Judging, and Conscientious Judging Conscience, Judging, and
Conscientious Judging. [online] 2. Available at:https://lawrepository.ualr.edu/cgi/viewcontent.cgi?
referer=https://www.google.com/&httpsredir=1&article=1187&context=appellatepracticeprocess
[Accessed 20 Feb. 2020].

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court of chancellor so the decision made by the court of chancellor would be

according to the conscience of chancellor, if we consider a standard for measuring

equity of chancery like “Foot”. Then it means some chancery has long foot and some

chancery has short foot which means some has broader sense of conscience and

some has narrower sense of conscience.

Many judges and law practitioners consider conscience and law a problematic

situation which can be confirmed by studying George Elliots epigraph, “

Were uneasiness of conscience measured by extent of crime, human history had

been different, and one should look to see the contrivers of greedy wars and the

mighty marauders of the money market in one troop of self-lacerating penitents

with the meaner robber and cut-purse and the murderer that doth his butchery in

small with his own hand. No doubt wickedness hath its rewards to distribute; but

whoso wins in this devil's game must needs be baser, more cruel, more brutal than

the order of this planet will allow for the multitude born of woman, the most of

these carrying a form of conscience — a fear which is the shadow of justice, a pity

which is the shadow of love — that hindereth from the prize of serene wickedness,

itself difficult of maintenance in our composite flesh.”12 This clearly shows she is

trying to establish a connection between conscience and law, and in the first

sentence of its epigraph she states that it is against the natural order of this planet.

For her conscience fails to measure the level of crime because law and conscience

are not significantly fused together. One of the great thinkers in terms of failures of

12
Law, Equity, and Conscience in Victorian England. Victorian Literature and Culture, 25(01), 123–139
| 10.1017/s1060150300004666. [online] Available at: https://sci-
hub.tw/https://www.cambridge.org/core/journals/victorian-literature-and-culture/article/law-equity-
and-conscience-in-victorian-england/A5270F81716801CA1E2983121EE19E19 [Accessed 20 Feb.
2020].

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conscience Arendt (1971, p.418) states that conscience an inner voice of oneself,

which can be subjective and objective in various cases, while judging a case and

acting on the principles of conscience, judge has to acknowledge the conscience of

the person involve to make a decision then how can it be sure that the person who is

guilty of doing something wrong must be considered for conscience. Peperzak (2004,

p.187) whether it is the voice of the state, the father or even the voice of God, my

conscience which is my inner voice is still coming from the inside. But as a conscience

it should be of some external source.13 So the claims of chancery courts that they can

hear internal voices of all individuals while listening to a matter is totally impractical,

it means if a person is accustomed of doing wrong can be given relaxation just by his

inner voice. Some cases in which conscience has failed to act and justify properly is:

“Outright theft”: If someone claims a right for the property, which officially his and

thief can have a possessory right on the stolen because of conscience. “Reneging on

shared expectations”: “Making someone to believe that they are interested in buying

something of yours, makes it unconscionable to step from their word once they rely

on the expectation.”

“Gaining advantage of the fiduciary”: Giving claims in which one represents the

interest of others are against conscience and its order.14 Due to these reasons

conscience has failed to be good source of justice for individuals.

On the other hand if we see the good aspects of conscience, in “Long service lean

(engine driver) case 308, Gallagher J. said that, equity and good conscience are

necessary for a fair judgment, it is according to the natural law, and observe

13
Stone, M. (2019). The Contradictions of Conscience: Unravelling the Structure of Obligation in
Equity. Law and Critique, 30(2), pp.159–178.
14
Ibid.

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everything from every angle, it is necessary to work with conscience to be honest

between two individuals.” In Moses vs. Parker [886] AC 245, in this case the court

which was going to judge that case was directed to work with good science and

equity, and to not be bound any means of law enforcement principles because

working with equity gives a broader view of judgment rather than usual law reforms.

In "Qantas vs Airlines Limited v Gubbins, (1992) 28 New South Wales Court of Appeal

of Anti-discrimination act 1997, the tribunal was told that they need to act according

to equity and good conscience regardless of any law enforce or legal rules.” 15

There are numerous examples of judiciary and legal bodies to work with conscience,

because equity and conscience emerged as alternative for common law. But

according to our main topic the difference between equity and common law rests on

the idea that jurisdiction has vague concept of conscience and indeed it is not true in

everycase. This statement can be justified in variety of ways by seeing different cases

which involves conscience for the benefit of individual and not doubt it does. But on

the other there are some solid reviews against conscience as we discussed above its

negative aspects. Relation of conscience with judiciary simple, because at the

judiciary is the law body and it has to implement decisions for individuals. By

studying literature thoroughly the actual meaning of conscience and equity has been

interpreted very differently and of course every one interpreted it according to his

own level of perception. That is why there are contradictions against understanding

of conscience, those who consider it impractical to be used consider that judiciary

practicing equity and good science has a vague understanding. And those who works

with equity and consider it above common law and its reforms consider it a broader
15
“The Duty to Act With Equity And Good Conscience...” (n.d.). [online] Available at:
http://www.prres.net/Proceedings/Proceedings1998/Papers/ke11biii.PDF.

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a vision to judge a case and to pass decision. The actual problem is not with

conscience and equity but with judiciary itself because there are numerous conflicts

between high profile judges regarding conscience and its use in judiciary. The bottom

line is to work with integrity by working with conscience and equity is good practice,

but it depends in different cases, while some cases require strict law reforms and

some require proper working with equity and conscience. But most of the cases

equity and conscience prevails in every way you see while working with equity and

conscience judiciary can be more flexible and open in every way. It can compensate

and relax victimized person in every way. But for doing this understanding of

conscience is very necessary it is very crucial for the judiciary to understand its true

meaning and its implications in necessary areas. Its understanding becomes vague

when you interpret meaning of something inefficiently rather than its actual

meaning. And debate is not only to point out these aspects but also it points out

things out of the domain of this topic which are understanding something according

to your own interest. And when you are peace keeper of a country and has such high

value and you mean to people a lot. You don’t have to get biased for anybody for

your own personal interest. We can conclude that term conscience is vast and

cannot be understood by ordinary means and every deals it with its own perception.