We Do This At Common Law But That In Equity

Abstract

This article argues that lawyers are not doing enough to eradicate the needless differences in terminology used, and the substantive inconsistencies, between common law and equity. In developing this argument, three categories within English private law are recognized. First, where common law and equity co‐exist coherently, and where the historical labels of common law and equity remain useful terminology. Second, where common law and equity co‐exist coherently but there is nothing to be gained by adherence to those labels which could, and should, be excised at a stroke. And third, where common law and equity do not co‐exist coherently and a change in the law, albeit often only a small change, is needed to produce a principled product. As a general illustration of what the third category comprises, and what fusion requires, one wide‐ranging and practically very important area within the third category is focused on, namely monetary remedies for civil wrongs.