I guess it depends on which jurisdiction you're in. The US may well have
constitutional issues (including "overavailability" of jury trials for
non-criminal matters) preventing a practical merger of law and equity, but
that's not the case in the other common law jurisdictions.
It hasn't quite come to equity "overthrowing" the law, although
equitable defences are allowed against legal and statutory claims, sometimes
even to the point where equity no longer always follows the law, IMHO. So I say
that eventually equity and the law will merge. I'm not saying it's going to
happen any time soon, but I also don't think, for example, that King John or
the nobles that defeated him could have predicted trial by jury for commoners as
they evolved, either. (I'm sure that I could think of better examples, but I'm a
bit pressed for time).
Also, AIUI, the maxims of equity are guiding principles, not strictly followed,
and their applicability is entirely fact dependent. That said, I don't see an
issue with applying equity along with the law and calling it one system. Equity
is already applied on top of the law where, for example, the principles of
"natural justice" trump both legislation and the law, and may render
either inoperable.
ISTM that eventual merger of law and equity seems to be where things are going
in the common law jurisdictions outside of the US, where trial by judge is the
norm.[ Reply to This | Parent | # ]
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