[PDF] Philosophical Foundations Of The Law Of Equity eBook

Author : Dennis Klimchuk
Publisher : Oxford University Press
Page : 400 pages
File Size : 37,71 MB
Release : 2020-04-02
Category : Law
ISBN : 0192549871

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The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.

Author : Irit Samet
Publisher : Oxford University Press, USA
Page : 241 pages
File Size : 26,89 MB
Release : 2018
Category : Law
ISBN : 0198766777

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This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose.

Author : Michael Levenstein
Publisher : Algora Publishing
Page : 160 pages
File Size : 33,77 MB
Release : 2014-03-01
Category : Law
ISBN : 1628940530

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Equity is a world unto itself. Originally conceived and administered by the ancient Court of Chancery in England, this arcane body of rules and principles has matured into a distinct branch of modern jurisprudence, influencing almost every field of private law -- from contract and tort to company and real property. Specifically, equity seeks to fashion practical justice by alleviating the inflexibility of the common law when liable to produce unfair outcomes in addition to providing a more robust set of remedies, such as injunctions or specific performance, to aggrieved claimants. Chancery law is governed by a set of principles referred to as 'Maxims of Equity,' nearly twenty moral guidelines aimed at providing jurists a wide scope in overriding the rigors of private agreements and facilitating complex financial and proprietary transactions such as the creation and management of trusts of land. Recognizing these maxims as key insights--not only into our own legal order but into the moral values that society at large prioritizes--requires both philosophical dissection and the practical assessment of their efficacy. Such scrutiny ultimately permits a keen understanding of the nexus between ethics and law, their inevitable divergences and which areas of the latter are most in need of reform.

Author : Lord Henry Home Kames
Publisher : Natural Law and Enlightenment
Page : 0 pages
File Size : 47,60 MB
Release : 2014
Category : Philosophy
ISBN : 9780865976160

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The first two, "theoretical," books examine the powers of a court of equity as derived from justice and from utility, the two great principles Kames felt governed equity. The third book aims to be more practical, showing the application of these powers to several subjects, such as bankrupts. Principles of Equity is significant as an example of the approach of an Enlightenment thinker to practical legal questions and as an early attempt to reduce law to principles. There is evidence that this book was well known in the formative years of the United States and that both Benjamin Franklin and Thomas Jefferson were familiar with Kames's treatise. Henry Home, Lord Kames (1696-1782), one of the leaders of the Scottish Enlightenment, was a judge in the supreme courts of Scotland and wrote extensively on morals, religion, education, aesthetics, history, political economy, and law, including natural law.

Author : Roscoe Pound
Publisher : The Lawbook Exchange, Ltd.
Page : 308 pages
File Size : 48,20 MB
Release : 2003
Category : Law
ISBN : 1584773278

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Pound, Roscoe. An Introduction to the Philosophy of Law. New Haven: Yale University Press, 1922. 307 pp. Reprinted 2003 by The Lawbook Exchange, Ltd. LCCN 2002044351. ISBN 1-58477-327-8. Cloth. $70. * Pound's Introduction outlines the philosophical foundations that support Anglo-American common law. A written version of the Storrs Lectures delivered at Yale University during the academic year 1921-1922. "Dean Pound has given us a clear, concise introduction to the philosophy of the law. It is so concise that it is impossible to summarize it so as to give any idea of its wealth of learning....An excellent, impartial and concise presentation of the subject..." William Herbert Page, Harvard Law Review 36:115-117 cited in Marke, A Catalogue of the Law Collection at New York University (1953) 922.

Author : John B Winslow
Publisher : Legare Street Press
Page : 0 pages
File Size : 15,18 MB
Release : 2023-07-18
Category :
ISBN : 9781020635960

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An insightful and erudite examination of the origins and principles of the legal concept of equity. Tracing its roots back to ancient Rome, the author shows how equity evolved into a fundamental part of the English legal system, and how its principles continue to shape modern law. With thorough research, lucid writing, and a keen eye for detail, this book is an essential reference for legal scholars and practitioners. This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work is in the "public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant.

Author : Renato Beneduzi
Publisher :
Page : 0 pages
File Size : 16,8 MB
Release : 2021
Category :
ISBN : 9783030780685

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This is a book on "equity in the civil law tradition" from the double perspective of legal history and comparative law. It is intended not only for civil lawyers who want to better understand the role and history of equity in their own legal tradition, but also - and perhaps more saliently - for common lawyers who are curious about why the history of equity has unfolded so differently on the continent of Europe and in Latin America. The author begins with the investigation of the philosophical foundations of the Western notion of equity in the teachings of Plato and Aristotle and of how their ideas affected the works of the great Attic orators (chapter 2). He then addresses the way in which Roman law turned this notion into a legal concept of considerable practical importance (chapter 3) and how it survived the fall of Rome and was later elaborated in the Middle Ages by civilists and canonists (chapter 4). Subsequently, the author analyses how the notion of equity was dealt with in the Modern Era by legal humanists, Protestant and Catholic theologians, scholars of the usus modernus pandectarum and of Roman-Dutch law, and then by legal rationalism and the philosophers of the Enlightenment (chapter 5). He then deals with the history of equity on the continent since the fragmentation of the ius commune and the codifications of the nineteenth century and with its reception in Latin America (chapter 6). Finally, the author offers some closing remarks on the fundamental equivocalness (or relativity, as some scholars put it) of the notion of equity in the civil law tradition today (conclusion).

Author : Denis George Lube
Publisher : Forgotten Books
Page : 546 pages
File Size : 39,45 MB
Release : 2017-11-18
Category : Law
ISBN : 9780331305456

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Excerpt from An Analysis of the Principles of Equity Pleading: Containing a Compendium of the High Court of Chancery, and the Foundation of Its Rules, Together With an Illustration of the Analogy Between Pleadings at Common Law and in Equity; With American Supplement, Containing Equity Rules and Forms I'r has long been a subject of reproach that the study of the law has degenerated from a liberal and scientific pursuit into a mere mechanical process of acquiring forms by dint of manual labor at the desk. How far this general censure on the profession may be just, we will not new step to inquire; but thus much we may be permitted to observe, that they who would confine the education of a lawyer to mere books, without afi'ording the student the advantages to be derived from the practice of an ofiice; and those who, on the other hand, recommend to have the pupil immersed in all the details of business, without a previous competent knowledge of the theory, would equally pursue a system erroneous and unprofitable. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.

Author : Dennis Klimchuk
Publisher : Oxford University Press
Page : 400 pages
File Size : 42,78 MB
Release : 2020-04-02
Category : Law
ISBN : 0192549863

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The law of Equity, a latecomer to the field of private law theory, raises fundamental questions about the relationships between law and morality, the nature of rights, and the extent to which we are willing to compromise on the rule of law ideal to achieve social goals. In this volume, leading scholars come together to address these and other questions about underlying principles of Equity and its relationship to the common law: What relationships, if any, are there between the legal, philosophical, and moral senses of 'equity'? Does Equity form a second-order constraint on law? If so, is its operation at odds with the rule of law? Do the various theories of Equity require some kind of separation of law and equity-and, if they do, what kind of separation? The volume further sheds light on some of the most topical questions of jurisprudence that are embedded in the debate around 'fusion'. A noteworthy addition to the Philosophical Foundations series, this volume is an important contribution to an ongoing debate, and will be of value to students and scholars across the discipline.

Author : Irit Samet
Publisher :
Page : 15 pages
File Size : 26,89 MB
Release : 2020
Category :
ISBN :

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The theoretical engagement with the law of Equity has never been so popular as nowadays. This immensely important body of law is now attracting the attention of private law theoreticians as questions that were first raised by Aristotle take a modern twist, and entrenched traditions are being questioned. The chapter explores the main strands of this renewed philosophical interest in Equity through the lens of the fusion debate, i.e. the question whether and to what extent Equity should retain its independence from the common law. Fusion is an apt gateway to the theoretical study of Equity as it engages two fundamental questions: 1) what is the price for preserving the current dualist system of Equity/Common Law (doctrinally if not institutionally); and 2) whether Equity's unique mode of adjudication and/or the structure of its norms enable it to play a role whose benefits outweigh the price of this dualism. The flexible, retroactive and particularistic manner of deciding cases which they employed, and the open-ended morally freighted norms which they developed placed the courts of Equity in the line of fire from the very start. The chapter assesses, and rejects, the modern version of this 'Equity scepticism' as largely exaggerated and as based on misconceptions about the concept of conscience in Equity, and the relationship between legal rules and the Rule of Law. In sharp contrast with the previously-dominant nominalist perception of Equity as a collection of doctrines that historically happened to originate in the Court of Chancery, the chapter supports a positive answer to the second question. It looks favorably at three attempts to identify a theme that runs through (at least) the core doctrines of Equity, and amounts to a vocation that can salvage this body of law from the accusation that it erodes the Rule of Law: combating opportunism, aligning private law with deeply-held moral convictions and introducing a new form of rights against other rights.