12 October 2011

More On Equity and the R3RUE

My previous entries on the Restatement (Third) Restitution and Unjust Enrichment (R3RUE) (see here for the most recent) have largely avoided the term "equity." Equity, especially in contemporary American legal understanding, is ambiguous and vague. Ambiguous because it may refer to equity as a separate historical forum in the common law system or to contemporary set of remedies; vague because memory of the contours of the substantive claims of equity has been lost. So sometimes it's helpful to step out of the sea of one's legal immersion to get another perspective on the subject.

Andreas Rahmatian has done a useful service in his piece on the Principles of Equity by Lord Kames (Henry Home, 1696-1782) (abstract here). I suppose most Americans don't care and most even most lawyers don't know that the common law does not apply in Scotland. Scotland's legal system is part of the civil law tradition, historically the ius commune, that once applied in most of the countries of Western Europe. Yet, given it's proximity to England and common monarch since the early 17th century, Scotland's legal scholars, like Lord Kames, were well aware of English common law.

Kames tried to explain the Scottish notion of equity in a "logically organised and principled jurisprudential discussion of scenarios of conflicts and proposed solutions." I found Rahmatian's discussion of Kames's efforts intriguing in light of the R3RUE, which has sought to do the same with regard to similar topics in the American common law. Kames was more of a philosopher than the drafters of the R3RUE claim to be.

The reticence of the R3RUE project to go beyond doctrinal analysis is consistent with their mandate and, in any event, many other scholars are leaping to fill the legal theoretical void. For those who are interested I can recommend Lionel Smith's Common Law and Equity in R3RUE (abstract here). (FWIW, I hope to get there in 2013; we'll see).

In the American legal system the term equity means so much it has come to mean almost nothing. By turning to the works of a sympathetic outsider like Lord Kames, I hope we can come to understand better what we have and why the R3RUE project is worthwhile.

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