27 August 2014

A Primer On Equity

Go here to read a short post by friend Ruben Alvarado on the Roman origins of the legal concept of aequitas or equity. Students of the common law may identify the origins of equity with the English Courts of Chancery and may further believe John Selden's canard that "equity is [no more than] the length of the Chancellor's foot," that is, equity has no formal substance and simply is the whim of the judge who exercises her discretion. Alternatively, those who practice in U.S. bankruptcy courts may associate equity with the historical assignment of jurisdiction for the original bankruptcy legislation in England.

Yet as Alvarado indicates, the Roman concept of equity is much richer and deeper and greatly influenced both the Medieval canon law and even the common law.

For my thoughts on equity you can download God's Bridle: John Calvin's Application of Natural Law (detailing historical notions of equity in both Greek and Roman thought and its place in natural law thinking in Calvin's thought) and, for the more technically minded, Third Time's the Charm: The Coming Impact of the Restatement (Third), Restitution and Unjust Enrichment in Bankruptcy (demonstrating that "equity" in contemporary American jurisprudence is just as substantively "lawful" as the common law).

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