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. Equity has thus traditionally filled the role of counteracting this nature, flexibly reactive to the circumstances of those coming before the law. However, expectations that equity is simply counterbalancing the often unfair rigours of strict law obscures today’s reality that it is more than just flexible. Indeed, equity can be just as rigid in its application as the common law, being necessarily both prescriptive and vague in parts to mitigate otherwise unfair outcomes. This proposition suggests that the common law and equity are achieving unexpected forms of alignment, which may eventually prompt them to become indistinguishable without necessitating their fusion. Indeed, observing the gradual development within the judicial application of equity and its alignment with flexibility yields a limited perspective to analyse how equity achieves justice. Instead, equitable remedies, generally regarded as being the purest form of equity in action, can be studied to identify how equity at its most flexible encapsulates aspects of rigidity. Such a duality between seemingly counterposing variables demonstrates an increase in overall effectiveness. Further, drawing a comparison with common intention constructive trusts identifies that this phenomenon is not limited to equitable remedies alone. The significance of this analysis is twofold: first, it broadens the prevailing perspective of debate, which adheres to a binary view juxtaposing certainty versus flexibility; and second, it suggests that the relationship between equity and the more rigid common law is one of co-dependence, rather than the two systems being either fused or independent. Indeed, equity and the common law cannot exist without each other, as both interact to varying extents in the pursuit of justice. Crucially, this insight presents new benchmarks for the mechanisms of justice, requiring that just outcomes may not be achieved without maximising both reliability and fairness.