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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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Aristotle at the Foundations of the Law of Equity

Aristotle at the Foundations of the Law of Equity

(p.32) 2 Aristotle at the Foundations of the Law of Equity
Philosophical Foundations of the Law of Equity

Dennis Klimchuk

Oxford University Press

This chapter argues that equity in the Aristotelian sense of correcting for errors arising from the generality of law is no less available in common law than in equity. Indeed, Aristotle’s account is reflected, in remarkable details, in the common law interpretive doctrine of equitable construction. Lord Ellesmere’s appeal to Aristotle in The Earl of Oxford’s Case, then, would seem to undermine rather than support the claim to the jurisprudential independence of equity and jurisdictional independence of Chancery. However, there is another current in Aristotle’s account of equity, substantive rather than functional, that fares much better as the basis of an account of equity’s distinctiveness. This is the idea that equity enjoins persons from being sticklers for their rights in a bad way.

Keywords:   Aristotle, equity, common law, equitable construction, Lord Ellesmere, jurisprudential independence, jurisdictional independence

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