What Conscience Can Do for Equity

Abstract

The paper argues that there are good reasons to frame the categories of equitable liability around the concept of conscience. A quick look at recent case law reveals an increasing use of conscience categories to discourage overly selfish behaviour among parties to commercial relationships. Critics discard ‘conscionability’ as an empty category of reference, or see it as a dangerously subjective point of reference. I want to show that the critics assume a very specific, and controversial, model of conscience in which it is a mere subjective psychological disposition to follow one’s hunch about right and wrong. Instead, conscionability should be interpreted in accordance with the Kantian objectivist model, as referring to the point of convergence between people’s motivation to do good and their commitment to objective moral norms. On this model, conscience has a strong public aspect as the reasons on which it operates apply to all reasonable human beings at all times.