Cambridge Legal Theory Discussion Group (CLTDG): 'Grounding Equitable Powers'

Speakers: Sebastian Lewis (Surrey)

Abstract: Equity has traditionally been understood as a moral corrective to the generality of statutory law based on a problem of legislative foresight. Because of the ad hoc and corrective character of equity, many scholars have seen a tension between the morality of equity and the positivity of law. Equity, John Gardner once suggested, is ‘justice rebellion against law’. In this article, I argue that there are good reasons for the law to positively regulate the use of equity by judges; and I do so while showing the conditions under which the law could implement, via the notion of an equitable power, what I take to be the two main historical ways of exercising equity in adjudication. These are equitable interpretation and equitable override of the applicable law. In defending this argument, I also aim to offer a brief historical sketch of equity and its relationship with the modern approach to implicit exception in the law, namely defeasibility.

You can find the links to Sebastian’s paper and to the meeting below:

The Paper: https://bit.ly/cltdg-lewis-paper

The Zoom link: https://bit.ly/cltdg-lent24-4

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