3. A House Built on Sand: Equity in Early Modern English Law

Abstract

One of the most distinctive features of English legal history is the existence of the Court of Chancery, alongside the normal courts of Common law and not bound by their rules and procedures. If the Common law courts were acting rightly, then Chancery should not intervene; if they were acting wrongly, then they should alter their own practices rather than leave it to a different court to act. By the 1570s, the Aristotelian theory of epieikeia was used to justify two completely distinct aspects of English law. One feature, presenting a parallel both with On Equitie and Archeion , is the identification of equity with the Court of Chancery. The Earl of Oxford's Case is commonly taken to be the decision in which the legitimacy of Chancery intervention to set at nought judgments at Common law, and hence the practical primacy of Chancery and equity over Common law, was established. Keywords: Archeion ; Court of Chancery; English Law; epieikeia ; On Equitie