by Gary Watt
Oxford: Hart Publishing Ltd, 2009 £45.00
http://www.hartpub.co.uk/books/details.asp?isbn=9781841138466
http://www.hartpub.co.uk/pdf/184113846X.pdf
Sir Frederick Pollock wrote that ‘English-speaking lawyers …have specialised the name of Equity’. It is typical for legal textbooks on the law of equity to acknowledge the diverse ways in which the word ‘equity’ is used and then to focus on the legal sense of the word to the exclusion of all others. There may be a professional responsibility on textbook writers to do just that. If so, there is a counterpart responsibility to read the law imaginatively and to read what non-lawyers have said of equity with an open mind. This book is an exploration of the meaning of equity as artists and thinkers have portrayed it within the law and without. Watt finds in law and literature an equity that is necessary to good life and good law but which does not require us to subscribe to a moral or ‘natural law’ ideal. It is an equity that takes a principled and practical stand against rigid formalism and unthinking routine in law and life, and so provides timely resistance to current forces of extremism and entitlement culture. The project is an educational one in the true etymological sense of leading the reader out into new territory. The book will provide the legal scholar with deep insight into the rhetorical, literary and historical foundations of the idea of equity in law, and it will provide the law student with a cultural history of, and an imaginative introduction to, the technical law of equity and trusts. Scholars and students of such disciplines as literature, classics, history, theology, theatre and rhetoric will discover new insights into the art of equity in the law and beyond. Along the way, Watt offers a new theory on the naming of Dickens’ chancery case Jarndyce and Jarndyce and suggests a new connection between Shakespeare and the origin of equity in modern law.
‘This beautiful book, deeply learned in the branch of jurisprudence we call equity and deeply engaged with the western literary tradition, gives new life to equity in the legal sense by connecting it with equity in the larger sense: as it is defined both in ordinary language and experience and by great writers, especially Dickens and Shakespeare. Equity Stirring transforms our sense of what equity is and can be and demonstrates in a new and graceful way the importance of connecting law with other arts of mind and language.’
James Boyd White, author of Living Speech: Resisting the Empire of Force, Equity Stirring is a fine example of interdisciplinary legal scholarship at its best. Watt has managed to produce a book that is fresh and innovative, and thoroughly accessible. Deploying a range of familiar, and not so familiar, texts from across the humanities, Watt has presented a fascinating historical and literary commentary on the evolution of modern ideas of justice and equity.
Ian Ward, Professor of Law at the University of Newcastle upon Tyne.
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Gary Watt is a Reader and Associate Professor of Law at the University of Warwick, and one of the General Editors of Law and Humanities. He was named UK ‘Law Teacher of the Year’ 2009.
TABLE OF CONTENTS
1 Excursion
Equitable Reading 4
The Constancy of Remedial Equity 8
The ‘Science’ Fiction of Law 10
The Cultural Story of other Countries and other Worlds 14
Law, Humanities and the Humane 16
The Character of Equity 26
Multiple Meanings of Equity 36
Education 42
2 In Chancery
Equity Captured in Chancery 48
The Earl of Oxford’s Case 67
In Fashion: Equity and the Problem of Precedent 76
The New Life of Equity 79
3 Chancery Script
The Future of Chancery Language in English Law 84
Bending without Breaking 88
Chancery Language 89
Maxims 92
Chancery Doctrine 104
Equitable Remedies 113
Equitable Property 116
Trust 117
The Historical Development of the Trust 120
The Metaphysical Appeal of the Trust 124
Constructive Trust 126
Mortgage 130
4 Figuring Equity
General Law as Abstract Fiction 137
The Reductive Nature of Legal Abstraction 139
The Merit of Metaphor 141
Metaphor as Equitable Doctrine – the Example of Resulting Trust 149
Metaphors of Equity 151
Architectural Metaphors: Level Ground, Right Angles and the Leaden Rule 153
The River of Justice 157
The Scales 163
The Personification of Equity 166
5 The Equity of Esther Summerson
Esther and Summerson 172
The Fractured Canon and the Equity of the Book of Common Prayer 178
The Stereotype of Female Equity 179
Motive Moderation 183
Domestic Goddess 191
The Close of Esther’s Narrative 194
6 Shakespeare’s Equity
Shakespeare’s Legal Language 200
Shakespeare and the ‘Equity’Word 206
Falstaff and Equity – a Reinterpretation 207
Equity Stirring 211
To Catch and Keep the Conscience of the King 213
The Merchant of Venice 214
Measure for Measure 218
Shakespeare’s Impartiality 222
7 Pretence of Equity
Outlaw Equity 231
House and Homecoming 237
Pretence of Equity 240
The Future 244
The Limit 246
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