Trusts and Equity Essay Example | Topics and Well Written Essays - 2000 words - 1

Trusts and Equity - Essay Example seems not entirely wrong, to say that lawyers and legal theorists tend to deal with the first option, a rule-bound jurisprudence of equity and literary practitioners with the second, a less formal, more allusive supplementary notion of equity. But the question as to whether equity does or does not â€Å"belong† to the law is not just an institutional one. The answer also depends on whether equity is associated with something general, such as a universal rational order of justice, or something particular, such as the judicial discretion to interpret the law according to rules and precedents that can change over time. Similarly, it depends on whether the law is associated with something general, such as the predictability and security of rules, or something particular, such as the alterability and flexibility of rules and precedents over time. Thus, what is general about equity is its concern with what is universal. Conversely, what is general about the law is its concern with w hat is predictable; what is particular, its concern with what is posited. Different conflicts between the general and the particular may emerge, therefore, depending on whether equity is or is not considered part of the law. If it is part of the law, then the security, validity, and accessibility of rules may conflict with the potential unpredictability, arbitrariness, and privacy of judicial discretion. If not, then different aspects of judicial discretion, such as a judge’s â€Å"genius† or â€Å"paternalism, † may conflict with non-judicial forms of discretion, such as the readiness of individual conscience to ascribe or accept guilt. (Polloczek, 1999, p. 9) Though since the Judicature Act came into force in 1875 the rules of Common Law and Equity are recognised and administered in the same court, yet they still remain distinct bodies of law, governed largely by different principles. Like the Common Law, the rules of Equity are judicial law, i.e. to find them we must look in the first