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Reconciling the Rule of Law with Equitable Remedies

Arnaud J M Dyduck

(2022) 34 SAcLJ 400

This article will confront equity with the rule of law and answer the fundamental question of whether equitable remedies are compatible with the standards usually ascribed to the two main theories of the rule of law. On one hand, equity’s hallmarks of discretion, conscience-based adjudication and flexibility are a common feature of common law jurisdictions. On the other hand, the rule of law can be distinguished along two main theories: a formalist account where rules have to be certain and published in advance, or a substantive account where the content of the law itself has to meet certain standards, notably protection of properties, respect for human dignity and ability to live independent lives free from interference from the state. This article will argue that equity, in its remedial and “supplemental law” jurisdictions, can be reconciled with both accounts of the rule of law. In particular, equity does not infringe on the formalities required by the formalist version of the rule of law and equity performs multiple functions necessary for a more substantive version of the rule of law: it restrains unconscionable reliance on strict legal rights, it protects property through its expansion of tradeable rights, and it facilitates how people can organise their lives.