ABSTRACT
4The English legal system distinguishes between common law and equity. The role of equity since the time of the ancient Greek philosopher Aristotle has been to ensure that strict legal rules are not applied in a way that causes injustice. Equity can be understood today as having three roles. First, to prevent strict legal rules being applied unjustly; second, as creating substantive rules itself, especially in the law of trusts; and, third, as creating procedural rules and remedies.
The general principle which English equity uses in this context is to ‘correct’ the defendant’s conscience: that means, the court measures the defendant’s behaviour against the standards which the law requires. This root principle informs the way in which more detailed rules are developed and interpreted. The historical root of this word ‘conscience’ can be identified in 16th century English history, but it remains important today in the ways that the courts have developed it in decided cases.
