"It cannot be assumed that equity was following common law whenever they agreed, any more than the converse"
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Pollock warns against a lazy historical instinct: when equity and the common law reach the same result, do not assume one is merely copying the other, and do not assume the reverse. Each system grew with its own aims, tools, and intellectual habits. The common law favored general rules, precedent, and jury-triable claims for damages; equity, administered by the Chancery, developed flexible standards and discretionary remedies like injunctions and specific performance to temper rigid outcomes. Convergence, when it happens, may reflect shared social pressures or overlapping moral intuitions, not subordination.
The history bears this out. Penalty clauses offer a familiar illustration. Common law judges once enforced them strictly; equity crafted relief against penalties to prevent oppression. Over time, common law doctrine shifted toward a similar hostility to penalties. The later agreement does not prove that equity was following the common law or that the common law deferred to equity. Each tradition grappled with commercial fairness and predictability in its own idiom and timetable.
The same independence appears in remedial choices. Both systems might refuse relief when a promise is too uncertain, but the reasons differ. A common law court might say there is no enforceable contract for want of definiteness; an equity court might deem specific performance impracticable while still recognizing the bargain for damages. Apparent harmony masks distinct foundations.
Pollock’s point matters after the Judicature Acts merged the courts’ administration but not their principles. Modern lawyers sometimes treat equity as a mere annex to the common law or posit a simple narrative of fusion. Pollock resists that simplification. Agreement can arise from parallel reasoning, gradual cross-pollination, or practical necessity. To understand English law, one must trace the separate lineages and the moments where they intersected, rather than assume that coincidence of outcome proves a hierarchy of source.
The history bears this out. Penalty clauses offer a familiar illustration. Common law judges once enforced them strictly; equity crafted relief against penalties to prevent oppression. Over time, common law doctrine shifted toward a similar hostility to penalties. The later agreement does not prove that equity was following the common law or that the common law deferred to equity. Each tradition grappled with commercial fairness and predictability in its own idiom and timetable.
The same independence appears in remedial choices. Both systems might refuse relief when a promise is too uncertain, but the reasons differ. A common law court might say there is no enforceable contract for want of definiteness; an equity court might deem specific performance impracticable while still recognizing the bargain for damages. Apparent harmony masks distinct foundations.
Pollock’s point matters after the Judicature Acts merged the courts’ administration but not their principles. Modern lawyers sometimes treat equity as a mere annex to the common law or posit a simple narrative of fusion. Pollock resists that simplification. Agreement can arise from parallel reasoning, gradual cross-pollination, or practical necessity. To understand English law, one must trace the separate lineages and the moments where they intersected, rather than assume that coincidence of outcome proves a hierarchy of source.
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| Topic | Justice |
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