Equity: Balancing certainty and flexibility to secure justice

Abstract

The development of legal principles which arise from judicial decisions, forming the common law, are often criticised for their apparent rigidity. The role of counteracting this strict nature has traditionally been filled by equity, reactive to the circumstances of those who come before the law. This position of equity, counterbalancing the oftentimes unfair rigours of strict law, can be observed notably in the administration of equitable remedies. Nonetheless, the following analysis identifies that equitable remedies are perhaps not as flexible as they are commonly perceived. Indeed, equitable remedies are necessarily both prescriptive and vague in parts in order to mitigate otherwise unfair outcomes. This suggests that the common law and equity are achieving unexpected forms of alignment, which may eventually prompt them to become indistinguishable. Crucially, this insight presents a new benchmark for the mechanisms of justice, which requires a balance between reliability and fairness.