Men of law have certain scruples and are unable to eliminate justice from the law completely without twinges of conscious. But it is not possible to retain it because of the difficulties it involves, the uncertainty of operation and unpredictability it entails. In a word, judicial technique implies that bureaucracy cannot be burdened any longer with justice.
Equity is protean, traversing a number of registers, from the law formerly emanating from the English Court of Chancery (now inscribed within the architecture of modern law and legal governance) to important jurisprudential questions concerning forms of judgment within and beyond law, and ethical modes of conduct(ing) and relating to law. In this sense there is no ‘equity’ as such but rather equities, each with divergent histories, overlapping and intersecting ‑ and perhaps passing one another by ‑ in complex ways, but holding them together is a relation to Law.
Over the course of two days at the end of June 2015, Kent Law School hosted the first workshop for the newly formed Equity & Trusts Research Network created by Nick Piska from Kent and myself from the Open University. The ‘Equity & the Resources of Critique’ workshop felt a long-time coming and was the result of a conversation first held whilst attending the ASLCH conference (Association for the Study of Law Culture and the Humanities) in Charlottesville, Virginia during the spring of 2014.
Quite simply, the aim as first concieved was to bring together scholars from law and beyond to discuss equity, a subject felt to be under-subscribed to in the critical legal field and poorly represented more generally in legal scholarship. Further, it was important that the network build on a number of excellent critically-minded initiatives that had focused on equity previously but for whatever reason had stalled or lost momentum, including work conducted by Nick and Maria Drakopoulou at Kent during the summer of 2012.
It is clear that a number of scholars in the UK, US and Australia (to name but three) continue to demonstrate an interest in equity in all its multifariousness inasmuch as equity appears, albeit often tangentially, in a number of critical evaluations of the law. In short, scholars are talking around the edges and traversing the margins of equity. Yet equity either expressly named or explicitly acknowledged continues to elude final drafts and overall conclusions.
Rather than bemoan a lack of specific discussions naming equity however, I remain convinced not of a so-called equitable turn as such, but that there is a long shadow cast by equity across a number of different even disparate registers of legal inquiry. In this sense, equity is always already alive in legal inquiry and is beginning to show itself as vital in the substance and development of numerous areas of social, legal, political and economic thought at the beginning of the twenty-first century.
At the Critical Legal Conference (CLC) 2014 at the University of Sussex Nick and I convened an equity stream precisely to draw together existing conversations on or around equity that were otherwise destined to dissolve or become lost in broader legal discussions. The excellent papers, conversations and debates produced at Sussex paved the way for the workshop in June, and we saw the return of a number of scholars from the CLC at the workshop who had been able to push their ideas and themes forward via a more precise orientation toward equity as a thematic.
The array of approaches to the challenges or problems posed by equity provided lively debate at the recent workshop as it had at the CLC. It revealed the early and exciting stages of a productive group working towards an often provocative confrontation and orientation toward the many faces of equity. Further, it demonstrated the possibility of reinvigorating an otherwise ossified ancient juridical mode through exposure to modern social, political and economic concerns, underpinned by an understanding that with more precision and more depth we can better understand what we are talking of when we talk of equity.
From our papers and discussions, debates and tensions the bold if half submerged histories, traditions and cultures of equity began to emerge; equity’s visual, metaphorical and psychical representations formed by imagination and shaped by creativity and improvisation; questions of power, affect, ethics and subjectivity that test trusting relations, decorum and gender; equity’s proliferation and protection of property and role in wealth inequity; and the practices of equity within but also beyond the law. All were revealed and the ground cleared for many other debates still to come.
The readily accepted and disseminated notions of the mercurial and imprecise nature of equity was relived but importantly challenged. Not because such estimations of that nature are not true or rather accurate. But because prevailing mainstream narratives that continue to posit equity in this manner are want to do so pejoratively and inestimably, instead of considering the possibilities that such a nature presents for, amongst other things, disruption and critique of parallel modes of juridical being, reasoning and meaning in both space and time.
It is perhaps a cause of the wide open spaces and across the many registers through which equity moves that those who talk of it often do so out of ear-shot of one another. The call of The Equity & Trusts Research Network is to address this and bring together the many voices, not into a dead-space of acquiescent unification but a productive space worthy of the multidimensionality and plurality represented not by equity, but equities.
For the coming year 2015/16 the Network already has planned a number of activities, including further conference streams. In December, as part of the Law Literature and Humanities Association of Australasia (LLHAA) conference in Sydney, we are inviting people to join our stream to address the fundamental jurisdictional issue of whether equity ought to be considered law’s accomplice. But this question is far from being one purely of jurisdiction. It also functions as a provocation notably to the construction of common law ideals of justice, but equally to those of civil law in which equity, as a mode of legal reasoning, has long been a mere and largely indistinguishable stitch in the fabric of justice.
Equity is at play and is operative in common and civil law jurisdictions alike. It cannot be ignored but neither does it readily melt into universal or general conceptions of justice. In the same vein, equity is not merely a synonym for fairness and right action, nor is it unthinkingly interchangeable with equality. At law equity is a creator of rights, but it also constrains if not destroys rights as well.
More broadly, equity is at once a facilitator of a socially-minded communi sensu and a mechanism for the promotion of individualism, competition and marketization – two oppositional standpoints that nevertheless find a home in the concept of trust. For modern liberal societies equity is hero and villain and much in-between, as it navigates and aggravates by degrees the three dimensions of ius civile, ius gentium and ius naturale.
A final thought is one that turns upon the statement of intent apropos modern governance proposed by Jacques Ellul in the quote at the start of this review. That is, what the future form and substance of equity in law and beyond will amount to if legal, political and perhaps most keenly economic bureaucracies cannot be burdened any longer with justice. Equity is inescapable to the consideration of this question. The Equity and Trusts Research Network invites participants to address it.
Equity & Trusts Research Network LLHAA 2015, Sydney, Australia
Call for Papers
Equity: law’s accomplice?
Aristotle called equity a ‘correction of law’; Maitland ‘a gloss’. In spite of their insistence as to equity’s separateness and distinctiveness, Gummow, Meagher and Lehane were ‘always driven back to Maitland’s dictum’. But, how ought we to now understand equity against the political and economic in modernity? If law is part of our entanglement in the world, then ought equity to be considered as anything other than an accomplice to law’s will in the fields of the social, political and economic?
As part of an ongoing project involving a growing network of scholars from a range of academic backgrounds, the stream proposed for the LLHAA 2015 will aim to analyse equity as law’s accomplice par excellence.
Central to this proposal is a reclaiming of equity as a core area of legal knowledge from the otherwise amorphous mass of ‘law’at is, critiquing both equity’s own technologies as well as those conceived and maintained amid the white heat of its concurrent jurisdiction with the common law in Anglo-Australian jurisdictions, and beyond.
Reclaiming equity has particular importance when considering its professed stewardship over property. The centrality of property within the fields of the political and economic demonstrates what is at stake, and why equity deserves attention. Thus, to talk of and to equity provides a significant means of confronting, analysing and rendering problematic core aspects of the conference theme.
As such, equity will be interrogated in order to ascertain whether it names a problem rather than a solution (remedy); a horizon rather than a closed field of law, one in which the moral, political and material positions shaped by legal complicity can be disrupted and brought into question.
Please submit abstracts to: firstname.lastname@example.org
Robert Herian – Lecturer in Law, The Open University
 Jacques Ellul, The Technological Society, (trans. Jack Wilkinson), New York: Vintage, 1964, p.295