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

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giving confession (itself that classical objectification of the conscience) and claimingthat their self-contained consciences are clear:‘But what is conscience? It is the voice of others inside you.’ 8What this idea suggests is that conscience is formed by our inter-actions with otherpeople and is not something which we develop inside our own heads in a vacuum.This raises a range of important philosophical questions considered below. At root,perhaps, it reflects those debates about whether or not the law should operateobjectively or subjectively.The distinction between subject and object is, of course problematic. To talk of thesubject meaningfully, one must mean an individual and particular person. As soon asdiscussion becomes discussion of similarities between subjects or of an idealisedsubject then one immediately begins to objectify that subject. 9 So, the conscience ismost easily recognised as that small, still voice within us individually which speaks tous only of shame. For equity to seek to judge the conscience in accordance withdecided principle is necessarily to seek to objectify that conscience. To judge theconscience even on the basis of total judicial discretion is to objectify it, is to take itoutside the subject and to use it as a lens through which to view those acts oromissions which for which the defendant is on trial.This perception of the vernacular sense of conscience is still troublesome. Is it correctto think of the conscience as a still, small voice. Or is the conscience something whichmoves, which grows and which develops? Further, is the conscience a still, smallvoice. If the individual is formed socially, at least in part, then the conscience ispotentially a particularised rendering of a massive, public morality which is producedwithin the individual as an amalgam of socially-broadcast messages about right andwrong, of the products of inter-actions with other individuals (from immediate family,to work-mates to school-friends), and of more subtle phenomena like law,environment and so forth which shapes expectations and attitudes more subliminallystill. In Elias’s view, individuals are necessarily socially-constructed. 10 Therefore, theinternal world of even the particular individual must be considered to be objectified atsome level.At a further level, Levinas locates the essence of morality in a respect for otherpeople. In this sense, equity might sensibly be said to operate on the externallyexhibitedmorality of the individual rather than on the internally-situated morality ofthat same person. Equity is responsive to the external manifestation and notinquisitive as to the contents of the internal morality. This is always assuming that theindividual is conscious of her own internal morality until external factors challengethat individual, causing her conscience to speak for the first time “out loud” even toherself about her own attitudes to particular ethical challenges. At this level, therefore,it is possible that the conscience – even at the level of the individual’s private8 Pirandello, Each in his own way, spoken by Diego in Act 1, trans. Firth, Pirandello – Collected Plays,Vol. 3, Calder, London, 1992, 71. Also rendered in other versions as ‘Don’t you see that blessedconscience of yours is nothing but other people inside you!’, for example in Williams, The WimbledonPoisoner, Faber & Faber, London, .9 Adorno, ‘Subject and object’, .10 Elias, The society of individuals, .26www.alastairhudson.com | © professor alastair hudson
mythology and concealed world-view which remains dormant and unexplored inmany of us (our true feelings about strawberry yoghurt, an aversion to blue food dye,a thrill at the smell of warm road tar, a suspicion of sewing needles, a fear ofaccidentally chewing the tin foil wrapper on a Kit-Kat 11 ) until something in theoutside world calls it unexpectedly to our conscious perception. Conscience, thatautomatic censor, is therefore not only externally created in part, but the process of itsgeneration in terms of our realisation of what our conscience likes and dislikes isfrequently dependent on external stimuli.All that can be said is that the conscience is privately situated. This suggests that theindividual hosts her conscience. What remains at large are both the contents of thatconscience and the process by which the conscience is formed. The contents of thatconscience are prey to constant change and adaptation. Furthermore, the contents ofthat conscience at any particular time will be objective material, even if passedthrough ostensibly subjective filters.In conclusion, it is suggested that the conscience on which equity purports to act isnecessarily a partly objective phenomenon in any event. Indeed, the most strikingexample of the action of public morality on the privately-situated conscience wouldbe a judgment from a court of equity that a particular action breaches that equitablecode. Law exists to measure the behaviour of individuals up against the objectiveconscience of society as expressed through law – therefore, equity is simplyexpressing that general prescription.Dishonest assistance and the problem caused by Twinsectra v YardleyRoyal Brunei Airlines v. Tan [1995] 2 AC 378, 387, per Lord Nicholls: “… acting dishonestly, orwith a lack of probity, which is synonymous, means simply not acting as an honest person would in thecircumstance. This is an objective standard.’Twinsectra Ltd v. Yardley [2002] 2 All E.R. 377, 387, per Lord Hutton: ‘There is, in my opinion, afurther consideration [than deciding whether the test is one of knowledge or dishonesty as set out by Lord Nicholls]which supports the view that for liability as an accessory to arise the defendant must himself appreciate that what hewas doing was dishonest by the standards of honest and reasonable men. A finding by the judge that a defendanthas been dishonest is a grave finding, and it is particularly grave against a professional man, such as a solicitor.Notwithstanding that the issue arises in equity law [sic] and not in a criminal context…’Dubai Aluminium v Salaam [2002] 3 WLR 1913Barlow Clowes v Eurotrust [2006] 1 All ER 333, [2006] 1 WLR 1476Abou-Rahmah v Abacha [2006] EWCA Civ 1492, [2007] Bus LR 220.Theodor Adorno – subject/objectAdorno refers to ‘a subjectively mediated but objective aesthetics’.- Adorno, ‘Subject-object’, in Aesthetic Theory, ed. Adorno and Tiedemann, trans.Hullot-Kentor, (Continuum, 2004), p.216.This is the way to understand the notion of dishonesty and conscience – as …[‘Subjectivity, however, though a necessary condition of the artwork, is not theaesthetic quality as such but becomes it only through objectification…’ (p.223) andlater ‘The totally objectivated artwork would congeal into a mere thing, whereas if italtogether evaded objectification it would regress to an impotently powerlesssubjective impulse and flounder in the empirical world’ (p.230).]11 Another brand name which is automatically familiar to my speller checker.27www.alastairhudson.com | © professor alastair hudson
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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,
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Page 14 and 15: Trusts of homesThe law on trusts of
Page 16 and 17: We need the judges to own up to the
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Page 20 and 21: Taxonomy is such a masculine respon
Page 22 and 23: The unbearable lightness of propert
Page 24 and 25: THE LEGAL CONSCIENCEIs it possible
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

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