England's dreaming equity, trust and conscience - alastairhudson.com

As to any artificiality in equity, well it must be remembered that law functionsby using fictions and artificial models to achieve desirable effects: Fuller,Legal Fictions (Stanford University Press, 1967). For example, there isnothing innate about the trust. Rather, it is a made up concept which is useful(which is why we created it). The same is true of the contract. We created afiction whereby action x leads to legal rule y (whether the creation of acontract or of a trust, or whatever). So why is there necessarily any greaterartificiality in a doctrine which achieves the socially-useful goal of preventingunconscionable misuse of another person’s property?4. Unjust is a word with a purely technical meaningMy greatest difficulty with the restitution project is its determined amoralityand its equally determined refusal to explain what its philosophicalunderpinnings are. While one might expect that a theory of “unjustenrichment” has at its heart a moral project, in truth its goals are entirelypositivist, and so not concerned with morals, nor even with Hart’s rule ofrecognition. Birks was clear on this point:‘“Unjust” here is technical. An enrichment is unjust if the circumstances are suchthat the law requires its recipient to make restitution.’- Birks, ‘Rights, wrongs and remedies’ (2000) OJLS, 1, 6.This is deeply problematic. Not only have we arbitrarily selected one judgmentby one judge (in Moses v Macferlan) as establishing the basis for this newarea of law (which will eradicate hundreds of years of authority at a stroke),but we are not even going to state the basis on which we are intending to doso.In fact this is an entirely Nietzschean project, with Birks as its superman. AsNietzsche told us in The Will to Power:-‘It is the powerful who made the names of things into law, and among thepowerful it is the greatest artists in abstraction who created the categories.’- Nietzsche, The Will to Power, para 513.This project is about dominating the discourse of private law and aboutsubjugating it to a new model the philosophy of which is obscure.What restitution thinking overlooks is that, while clarity and certainty may bedesirable in most legal circumstances, there will be many circumstances inwhich certainty is a less desirable characteristic than achieving just results.This is why equity remains significant, and why restitution on the Birksianmodel will never hold sway in the way its adherents would like.Let us consider a context in which a rigid principle has proved unworkable injust such a way: viz. cases in which the plaintiff is seeking to establish a rightin the home where there is no express trust or equivalent resolution of thequestion.10www.alastairhudson.com | © professor alastair hudson