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

More documents

Recommendations

Info

THE LEGAL CONSCIENCEIs it possible to have a “legal conscience”?We must consider how we can understand the notion of “conscience” whichunderpins equity as being a viable notion. It’s a question of how far back you go inlooking for your central organising principle. Consider the following:-Aristotle’s Ethics:“For equity, though superior to justice, is still just … justice and equity coincide, and although both are good,equity is superior. What causes the difficulty is the fact that equity is just, but not what is legally just: it is arectification of legal justice. The explanation of this is that all law is universal, and there are some thingsabout which it is not possible to pronounce rightly in general terms; therefore in cases where it is necessaryto make a general pronouncement, but impossible to do so rightly, the law takes account of the majorityof cases, though not unaware that in this way errors are made. … So when the law states a general rule,and a case arises under this that is exceptional, then it is right, where the legislator owing to thegenerality of his language has erred in not covering that case, to correct the omission by a ruling such asthe legislator himself would have given if he had been present there, and as he would have enacted if hehad been aware of the circumstances.”Earl of Oxford’s Case (1615) 1 Ch Rep 1, per Lord Ellesmere:“the office of the Chancellor is to correct men’s consciences for frauds, breach of trusts, wrongsand oppressions … and to soften and mollify the extremity of the law”This talk of conscience was endemic in 17 th century England in the lead-up to the Civil War – asevidenced by Tristram Hunt’s book, collecting contemporary documents, The English Civil War – AtFirst Hand (Phoenix, 2002).Lord Dudley v Lady Dudley (1705) Prec Ch 241, 244, per Lord Cowper:“Now equity is no part of the law, but a moral virtue, which qualifies, moderates, and reformsthe rigour, hardness, and edge of the law, and is an universal truth…”The objectivity of “conscience” in truth‘Conscience is the aboriginal vicar of Christ.’- Cardinal NewmanThe conscience. That still, small voice which speaks to us mainly of shame.The word “conscience” itself is derived via Old French from the Latin “conscientia”meaning variously “consciousness” 1 ; “one’s inmost thought” 2 ; an “inward knowledge1 Shorter Oxford English Dictionary, 5 th edn, 2002; Encarta World Dictionary, 1999.2 Shorter Oxford English Dictionary, 5 th edn, 2002.24www.alastairhudson.com | © professor alastair hudson
or consciousness, an internal conviction, mental recognition or acknowledgment” 3 ; or,interestingly, “privity of knowledge”. 4This last, particular sense of “privity of knowledge” emerges from the derivation ofthe word “conscience” from the Latin “conscire” meaning “to be privy to”: that is bya conjunction of the prefix “con” with the verb “scire”, “to know”. 5 Thus a consciencecontains the sense of being privy to knowledge of oneself with oneself. Such ameaning of the term conscience displays two important facets of the meaning ofconscience. First, one has private knowledge of oneself coming from the unique stateof being-in-oneself (unique in the sense that no other person can be within one’s ownself, although each individual has a being within themselves, explained bypsychoanalysts as the superego, which is separate from one’s own conscious self, orego). Secondly, there is a separation within the self such each individual sharesknowledge of herself unconsciously with the conscious self – that is, the consciencehas knowledge of oneself which it shares with oneself. That is, I would suggest, theconscience speaks to the conscious self by passing a sensation to the conscious self.This bifurcation between the conscious self and the conscience is present inMacaulay’s comment that “David can do as he likes … it is between him and hisconscience”, suggesting that David’s view of the matter would need consideration byhis conscious self and by his conscience as two distinct entities albeit containedwithin one self.There is an important separation between the conscious self and the conscience. Inpsycho-analytic terms this is the distinction between ego and super-ego.Psychoanalysis explains the conscience as being “part of the superego that passesjudgments on thought and behaviour to the ego for further consideration”. 6 Theconscience thus inhabits a dimension apart from the conscious ego. The manner inwhich the conscience then speaks to the conscious self is as an automatic, one-waytransmission of sensation. Predominantly, psychoanalytic theory considers that theconscience usually speaks of shame. 7 When one behaves in a way which theconscience considers to be shameful, then the conscience passes a sensation to theego.If equity were said to act on the basis of ‘a public morality expressed through thecourts’ then that would not lead to the uncomfortable muddle which is generated bythe modern usage which suggests that equity is concerned with the individualdefendant’s conscience rather than with the embodiment of the sovereign’sconscience through the actions of her officials and delegates. The term consciencesuggests a subjectivity at first blush. However, matters are perhaps not so easy. Tosuggest that conscience is something entirely within the individual and is somethingother than a public ethic expressed through legal principle, is to suggest that theindividual conscience and the consciousness to which it is both etymologically andmetaphysically connected is not socially constructed at some level. This notion isbeautifully expressed by the playwright Luigi Pirandello in his play Each in his ownway when the character Diego challenges the other characters who are talking about3 Shorter Oxford English Dictionary, 5 th edn, 2002.4 Shorter Oxford English Dictionary, 5 th edn, 2002.5 Shorter Oxford English Dictionary, 5 th edn, 2002.6 Encarta World Dictionary, 1999, p 403, under “conscience”.7 S Freud … .25www.alastairhudson.com | © professor alastair hudson
Page 1: England’s dreamingequity, trust a
Page 5 and 6: countries in the world (except thos
Page 7: Jaffey, The Nature and Scope of Res
Page 10 and 11: As to any artificiality in equity,
Page 12 and 13: They spent an extraordinary amount
Page 14 and 15: Trusts of homesThe law on trusts of
Page 16 and 17: We need the judges to own up to the
Page 18 and 19: The only couple who sound like they
Page 20 and 21: Taxonomy is such a masculine respon
Page 22 and 23: The unbearable lightness of propert
Page 26 and 27: giving confession (itself that clas
Page 28 and 29: The hermeneutics of Lord HoffmannHa
Page 30 and 31: of equity. 12 And yet, the law of t
Page 32 and 33: By contrast, there are areas in whi
Page 34 and 35: EQUITY AS UNDERSTOODIN THE OTHER SO
Page 36 and 37: law device. This explanation of equ

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

Create successful ePaper yourself

Delete template?

Save as template?