College Papers

The purports to guide in the form of

The notion suggests that the equity is having a function of restrictive unconscionable dependence on legal rights. The arguments of this part will be that there are reasons to think that  as equity has this function it makes a particular influence to the rule of law, understood in its modal notion. Moreover, Equity has a function of restraining unconscionable dependence on legal rights is barely a unique proposition. Historians of equity, for instance, make much of equity’s early concern with such abuse. One example often cited in this connection is the sealed bond, delivered to a creditor but not subsequently cancelled upon repayment of the debt; while the common law would compel the hapless debtor to pay twice on the strength of the seal, equity would refuse to countenance the creditor’s unconscionable reliance on the bond. Moreover, canonical texts on equity often describe in their opening pages the historical role of equity in preventing people from relying on their legal rights in unconscionable ways. Furthermore, the idea that equity restrains unconscionable reliance on legal rights forms part of the self-understanding of contemporary equity, as evidenced in the reflections of equity practitioners and theoreticians on the functions of equity today. It is to consider whether all of equity may be said to have a function of restraining unconscionable reliance on legal rights or to enumerate the ways in which equity may or may not discharge such a function; nor is the aim to ascertain whether a function of restraining unconscionable reliance on legal rights helps to define or is unique to equity. Instead, consistent with historical and canonical accounts and the self-understanding of contemporary equity, that one of the functions of equity is restraining unconscionable reliance on legal rights. On the basis of that assumption, it is considered that whether there are reasons to think that a body of law with a function of restraining unconscionable reliance on legal rights might make a contribution to the rule of law understood on a modal conception. To understand this claim more clearly, it is important to notice the different forms in which law purports to provide normative guidance. At times, law purports to guide in the form of commands or directives; criminal law and the law of torts are the clearest examples of bodies of law that purport to guide conduct in this way. Nonetheless, and this was a point that Hart famously emphasised in the Concept of Law, much of the time law’s normative guidance takes forms other than commands or directives. In many respects, law empowers citizens to bring about certain legally recognised states of affairs in particular ways, guiding citizens by creating known and reliable channels in which they may exercise their autonomy, often in cooperative ways, in acting and planning for the future. And at the same time, law constitutes a variety of positions, statuses and roles, which, when packaged with law’s “power-conferring” rules, give shape and content to legally recognised institutions, arrangements and frameworks for autonomous decision and action. The two bodies of law that most obviously purport to provide normative guidance through creating such institutions. Significantly, for present purposes, the legal system itself may play an important role in enabling and promoting attitudes and beliefs entailed in a disposition to engage with facilitative and constitutive bodies of law. To illustrate this point, imagine a hypothetical society in which there is a law of contract conferring legal rights on citizens.”‘ Imagine that there are profound and rapid cultural changes in this society as a result of which a large number of citizens begin routinely to rely in unconscionable ways on the legal rights that they enjoy pursuant to the law of contract. These citizens insist on the recognition and enforcement of their contractual rights at best with a callous disregard for the position of others and at worst so as to exploit and manipulate others for personal advantage. And imagine that the legal system of this society responds to these abuses of legal rights by invariably recognising and enforcing the rights on which the abusers rely.’ There are reasons to think that, in this society, confidence in and respect for contract law might begin to erode. There are reasons also to think that widespread beliefs that contract law is broadly just and oriented to enabling the cooperative pursuit of valuable ends may cease to be widespread. In addition, may come over time to be replaced by beliefs that contract law is unjust, oriented to the service of the powerful and unscrupulous, an instrument of oppression rather than a facility for cooperative interaction among equals. Where citizens’ beliefs and attitudes change in these ways, they may come to view contract law not as a source of normative guidance but rather as a necessary evil, to be tolerated only because and to the extent that no other options are available, particularly when dealing with the rich and powerful. Indeed, it is not inconceivable in this hypothetical society that a large number of citizens might eventually cease to engage with contract law altogether, preferring to act and plan for the future according to non-legal arrangements and frameworks.