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On the Normativity of Tradition and the conservation of Equity

Research output: Contribution to journalArticle

Original languageEnglish
JournalAmerican Journal of Jurisprudence
Volume65
Issue number2
Publication statusAccepted/In press - 2020

King's Authors

Abstract

This paper explores the question whether the normativity of tradition gives us reasons to
preserve the norms of equity (more or less) in their historical form, i.e., as separate from
neighbouring common law doctrines. The main target of the paper are arguments that call for
the replacement of equity with other, arguably more successful, means for attaining the goals
which equity sets to achieve. It begins by showing that even liberal, progressive and rationalist
people should see traditions as making a normative claim on us, as they can potentially possess
both instrumental and non-instrumental value that goes over and above the content of the
beliefs, rituals or forms of action which they uphold. The second part asks whether equity qua
legal tradition exemplifies such value. I find that the unique combination of legal and moral
tradition that we find in equity endows this body of law with a great value as an agent for social
cohesion, an instrument of coordination and a source of invaluable know-how knowledge. With
reference to two concrete examples of alternatives to equity – the continental doctrine of abuse
of rights and a good faith principle – I argue that the fact that equity has been the way we do
things around here for so long makes it a better platform for reform than an implant from
foreign system or a newly devised set of norms. If reform is needed, we should take equity as
its starting point rather than wipe the slate clean and start from scratch.

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