Abstract:
This article aims to explore the scholastic theological origins of the concept of “conscience” and explain how that concept came to be “legalised” and incorporated within the system of equity. In doing so, it will also argue that conscience is the keystone – or organising concept – of equitable jurisprudence as a whole, without which, equity can neither be understood nor rationalised. In order to prove the point, this article will examine the institution (and in some jurisdictions, remedy) of the constructive trust and explore how the concepts of conscience and unconscionability can help extricate ourselves from the quagmire of conflicting views and judgments which characterise this area of law.