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Conscience, Equity and the Court of Chancery in Early Modern England (Hardcover, New Ed)
Loot Price: R4,261
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Conscience, Equity and the Court of Chancery in Early Modern England (Hardcover, New Ed)
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Judicial equity developed in England during the medieval period,
providing an alternative access to justice for cases that the rigid
structures of the common law could not accommodate. Where the
common law was constrained by precedent and strict procedural and
substantive rules, equity relied on principles of natural justice -
or 'conscience' - to decide cases and right wrongs. Overseen by the
Lord Chancellor, equity became one of the twin pillars of the
English legal system with the Court of Chancery playing an ever
greater role in the legal life of the nation. Yet, whilst the
Chancery was commonly - and still sometimes is - referred to as a
'court of conscience', there is remarkably little consensus about
what this actually means, or indeed whose conscience is under
discussion. This study tackles the difficult subject of the place
of conscience in the development of English equity during a crucial
period of legal history. Addressing the notion of conscience as a
juristic principle in the Court of Chancery during the sixteenth
and seventeenth centuries, the book explores how the concept was
understood and how it figured in legal judgment. Drawing upon both
legal and broader cultural materials, it explains how that
understanding differed from modern notions and how it might have
been more consistent with criteria we commonly associate with
objective legal judgement than the modern, more 'subjective',
concept of conscience. The study culminates with an examination of
the chancellorship of Lord Nottingham (1673-82), who, because of
his efforts to transform equity from a jurisdiction associated with
discretion into one based on rules, is conventionally regarded as
the father of modern, 'systematic' equity. From a broader
perspective, this study can be seen as a contribution to the
enduring discussion of the relationship between 'formal' accounts
of law, which see it as systems of rules, and less formal accounts,
which try to make room for intuitive moral or prudential reasoning.
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