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Philosophical Foundations of the Law of Equity$
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Dennis Klimchuk, Irit Samet, and Henry E. Smith

Print publication date: 2020

Print ISBN-13: 9780198817659

Published to Oxford Scholarship Online: June 2020

DOI: 10.1093/oso/9780198817659.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 30 November 2021

The Equity of the Statute

The Equity of the Statute

(p.352) 17 The Equity of the Statute
Philosophical Foundations of the Law of Equity

James Edelman

Oxford University Press

This concluding chapter focuses on the doctrine of the ‘equity of the statute’, according to which courts can go beyond the literal meaning of a statute—either narrowing or broadening—in order to avoid perverse results. It distinguishes between two versions of the equity of the statute: an older one in which some external standard of morality is brought to bear to override the normal operation of a statute; and a more modern version of the equity of the statute in which statutory language is interpreted in a contextual manner and construed with a view to its purposes. Famous examples of the equity of the statute, in both versions, can be found in courts’ treatment of the Statute of Frauds. Although traces here and there of the older—independently moral—version of the equity of the statute can still be found, the chapter argues on grounds of separation of powers, rule of law, and judicial legitimacy, that the modern view is defensible and desirable, whereas new applications of the older version would be neither. Similar issues of equity arise with respect to all other instruments, notably including contracts, wills, and treaties.

Keywords:   equity, statute, courts, morality, statutory language, Statute of Frauds, separation of powers, rule of law, judicial legitimacy

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