Fusion and Theories of Equity in Common Law Systems

Abstract

The fusion of law and equity in common law systems was a crucial moment in the development of modern Anglo-American law, with implications for the procedural, substantive and remedial aspects of law. This paper will introduce a volume of essays in which scholars undertake historical, comparative, doctrinal and theoretical analysis that aims to shed light on the ways in which law and equity have fused, and the ways in which they have remained distinct even in a ‘post-fusion’ world. The central concern of this paper lies in two facts. The first is that the presence of equity in common law systems poses fundamental questions. What is the place of equity in a modern common law system? Is the purpose of equity, as a distinct ingredient of common law systems, spent? Should equity be distributed through the law? If equity should be a distinct ingredient of common law systems, in what form? The second is that fusion (or merger or union) has become the means by which lawyers address those basic questions. Helpful answers to these basal questions have become more remote as theories of equity have become constrained by the terms in which fusion is discussed. How can the situation be improved? This chapter suggests that a newly widened perspective is needed. The constitutional place that has been assigned to equity in common law systems must be acknowledged and accommodated. And any modern theory of equity must be composite rather than simple or unitary. Also important to appreciate is the practical significance of how fusion is discussed, and how equity theories are formed, in the thinking of lawyers and the work of the courts. To illustrate that practical point, illustrations are given of the accidental fusion of law and equity through the unthinking assimilation of modern equitable claims to the common law forms of action finally abolished in England in 1875.