Discretionary justice

This chapter asks whether equity’s distinctive role is to do equity in the Aristotelian sense of doing justice where law—by virtue of its generality—would do an injustice, and concludes it is not. Some paradigmatic cases of equity’s interventions are not corrections for the generality of a rule, but rather for its being simply a bad rule. However, there is no reason to say that the techniques used by equity could not have been adopted by the common law. Moreover, a case can be made that the common law tradition is especially unneedful of a distinct equitable jurisdiction, owing to the central role played by judge-made law. Nonetheless, when later judges clarify implicit rules by distinguishing present cases, this might be seen as a kind of equitable exercise. But, again, this is not unique to equity but is something one finds across the common law. Thus, if there is something distinctive about equity, it will be found in its substantive principles rather than its corrective function.