The Theological Foundations of Equity’s Conscience

Richard Hedlund

1. Introduction

This article will consider the role of “conscience” in English equity. Legal and academic criticism has been levied against equity’s use of conscience, arguing, inter alia, that the concept is vague and leads to arbitrary judgments. In responding to these arguments, this article will consider the historical background to equity’s use of conscience. The article will suggest that equity originally adopted a scholastic conception of conscience, due to equity’s link to the medieval Christian Church. The article will also suggest that equity should (and in essence does) continue to use a scholastic conception of conscience. This will address some of the concerns and criticism levied against equity’s use of conscience as a juridical test. Lawyers in the common law tradition are well aware of the existence of equity. Equity, as the article will seek to define more carefully, is a distinct body of rules and remedies which operate alongside the common law, to collectively make up the “law of England and Wales”. Equity is not universally popular; due to it being based on broad principles of morality, and thus seen as vague and open to subjective and arbitrary decisions by judges. This is in contrast to common law rules, which are generally perceived as being more taxonomically clear and certain (though that perception is certainly subject to challenge). In essence, the common law is certain and thus good; equity is capricious and thus bad. At the heart of equity lies conscience; equity remedies unconscionable behaviour.1 However, what is conscience? How does equity define unconscionability? The answers to these two questions are missing from the juridical discourse, which Turner rightly calls ‘curious’.2 That lack of clear judicial statements has given rise to much confusion and uncertainty, which understandably has fuelled the criticism that equity is subjective and capricious. Conscience itself is a mysterious concept. Conscience have been characterised in a multitude of ways by philosophers, theologians and psychologists.3 This has taken conscience on a remarkable journey. The early scholars to seriously engage with conscience were the Scholastic theologians. They saw it as a person’s engagement with a unified communal morality; an individual’s application of social mores. Later scholars, to the contrary, have argued that conscience is something wholly personal, where each person is allowed to formulate their own sense of morality and ethics. This view of conscience is prevalent in Protestant theology and with many modern philosophers.4 The subjective conceptualisation is the prevalent view in modern scholarship. One could see the negative implications if equity’s conscience was this second conceptualisation. Judgements could be based on judges’ personal opinions or defendants Richard Hedlund, York Law School, University of York. With the usual caveats, I would like to thank Professor Richard Nolan for his helpful comments on the research which preceded this article. I would also like to thank the anonymous reviewers for their helpful comments on an earlier draft.1 The Earl of Oxford’s Case [1615] 21 ER 485, 487 (Lord Ellesmere LC); Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669, 705 (Lord Browne-Wilkinson)2 David Turner, ‘Relief Against Forfeiture of a Proprietary Interest: When Will Equity Come to the Rescue?’ (2004) 23 University of Queensland Law Journal 464, 4733 See generally, Thomas Hill Jr, ‘Four Conceptions of Conscience’ in Ian Shapiro and Robert Adams (eds), Integrity and Conscience (New York University Press, 1998); Allen Wood, Kantian Ethics (CUP, 2008), 182; Douglas Langston, Conscience and Other Virtues: From Bonaventure to MacIntyre (The Pennsylvania State University Press, 2001), 99-1004 David Robinson, Conscience and Jung’s Moral Vision: From Id to Thou (Paulist Press, 2005), 12; Langston (n 3), 7

1

could escape liability by swearing they had followed their own conscience. Here, equity truly would be subjective and capricious. This concern is by no means a modern one, questions as to capriciousness arose at the latest with Cardinal Wolsey.5 With no predictability, it could hardly work as a legal system. It has been argued that the many critics of equity’s conscience have made an assumption that equity does use this subjective notion of conscience.6 With this assumption, they have, perhaps understandably, questioned the use of conscience as an equitable standard.7

The criticism is not only that equity’s conscience is subjective, but also that equity has failed to define unconscionability. Rickett has argued that unconscionability is a ‘meaningless reference’.8 Watt has argued that the role of conscience should be limited in order to preserve predictability in the law.9 The term unconscionability is so vague it has no real meaning and thus has no place in juridical discourse. So, what then is equity’s conscience? Professor Birks, one of the strongest critics, put the question succinctly when he asked whether equity’s conscience was ‘the intuitive understanding of the difference between good and evil’ or ‘the taxonomised and systematised understanding of that same difference, as taught by St Thomas Aquinas, reinforced by the authority of the church, and still expounded by serious natural lawyers such as John Finnis?’10 Is conscience personal and subjective or communal and objective? This article will argue for the latter. The suggestions that equity’s conscience is subjective or undefined have been refuted by judges.11 Successive judgments have made it clear that equity adopts an objective conception of conscience, where its meaning can be objectively known. Why then is there such concern over equity’s use of conscience? Klinck has argued that part of the blame lies with the judges for failing to comprehensively “analyse” conscience when using it.12 Whilst there are statements as to the objectivity of conscience, little is said as to its justification or the meaning of unconscionability. That discourse is still lacking. Uncertainty remains, to the extent that Hudson has posited that conscience is one of the most misunderstood aspects of equity.13

In this arena of criticised uncertainty, there has been some academic writing on what equity’s conscience means, notable by Dennis Klinck.14 Others, such as Mike Macnair and Irit Samet, have offered arguments as to what equity’s conscience might mean.15 It is beyond the scope of this article to fully engage with their views, other than to note that no firm conclusion has been reached. The nature of equity’s conscience is still unclear.

5 Timothy Endicott, ‘The Conscience of the King: Christopher St German and Thomas More and the Development of English Equity’ (1989) 47 University of Toronto Faculty Law Review 549, 5566 Irit Samet, ‘What Conscience can do for Equity’ (2012) 3 Jurisprudence 13, 147 Peter Birks, ‘Equity in the Modern Law: An Exercise in Taxonomy’ (1996) 26 University of Western Australia Law Review 1, 17; Peter Birks, ‘Equity, Conscience and Unjust Enrichment’ (1999) 23 Melbourne University Law Review 1, 22; Frank Tudsbery, ‘Equity and the Common Law’ (1913) 29 Law Quarterly Review 154, 1588 Charles Rickett, ‘Unconscionability and Commercial Law’ (2005) 24 University of Queensland Law Journal 73, 739 Gary Watt, ‘Unconscionability in Property Law: A Fairy-Tale Ending?’ in Martin Dixon and Gerwyn Griffiths (eds), Contemporary perspectives on property, equity and trusts law (OUP, 2007), 11810 Peter Birks, ‘Equity, Conscience and Unjust Enrichment’ (1999) 23 Melbourne University Law Review 1, 20-2111 See, for instance, Re National Funds Assurance Company (No 2) (1878-79) LR 10 Ch D 118, 128 (Sir George Jessel MR); Gonthier v Orange Contract Scaffolding Ltd [2003] EWCA Civ 873, [4] (Lindsey J)12 Dennis R Klinck, ‘The Nebulous Equitable Duty of Conscience’ (2005-2006) 31 Queen’s Law Journal 206, 20713 Alistair Hudson, Equity and Trusts, (7th edn, Routledge, 2012), 1014 Klinck (n 12), 20615 Mike Macnair, ‘Equity and Conscience’ (2007) 27 Oxford Journal of Legal Studies 659, 680; Samet (n 6)

2

This article will argue that equity originally adopted a scholastic conception of conscience and that this conceptualisation of conscience has remained, though it is today poorly articulated by the judiciary. An intuitive conscience, where the judge has absolute discretion, is not equity’s conscience (and Birks rightly says there is no historical basis for an intuitive conscience).16 It is the ‘taxonomised and systemised’ conscience, informed by reason, which has the historical basis to be regarded as equity’s conscience.17 As such, in this article, we return to equity’s origin in the medieval Chancery, where it was administered, not by law judges, but by clerics. The article will argue that the scholastic notion of conscience helps explain two things; namely, what equity’s conscience actually means, and the underlying rationale for the whole equity jurisdiction. Having a clearer understanding of the scholastic conscience gives new insight into modern equity, and removes some of the associated vagueness and uncertainty. The article will start of by briefly sketching the nature of the equity jurisdiction, before turning to explore the medieval debates on conscience. It will then try to link the scholastic theology to both medieval equity and trace it through to contemporary equity. The purpose, as said, is to present a fuller understanding of modern equity through this historical theological lens.

2. Common law and equity

The purpose of this section is to explore the duality of the English legal system, namely the coexistence of common law and equity. It will continue to look at how the common law is “claimant-focused” and how equity can be seen as being “defendant-focused”.

A. Common law and equity

The law of England and Wales consists of two distinct parts: common law and equity. Since the Judicature Acts of 1873/1875, both common law and equity have been administered in the same court.18 Prior to this the two systems had separate and distinct courts. After the administrative merger, there has been some (perhaps inevitable) substantive merger, as common law and equitable doctrines were applied side-by-side. However, in broad terms, the two systems remain distinct. Their theoretical bases are very different. Understanding equity through a common law mind-set will undoubtedly lead to confusion, and vice versa as well. The common law began to emerge after the Norman Conquest, as law-making and adjudication was centralised to the Royal Court.19 The common law developed in a different way from the continental civil law systems. Rather than being based around framework rules set out in a code, which was thereafter interpreted and applied (and, to an extent, also developed) by judges, the common law in many areas gave primacy to the courts. In the early centuries it is likely that the King’s Court had wide discretionary powers.20 The law was too young, and there was no body of precedent to draw upon. At the time, ‘no common lawyer’ would ever have believed that the common law was anything other ‘than part of the moral

16 There are now many judicial references to the “objective” nature of equity’s conscience; see Pitt v Holt [2013] 2 WLR 1200, [125] (Lord Walker); Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [45] (Gleeson CJ) 17 This is discussed in Part 5. See William Baildon (ed), Selden Society, Vol 10, Select Cases in Chancery, 1364-1471 (Bernard Quaritch, 1896), Case 25, page 30; Case 63, page 6418 The courts highlighted that it was purely an administrative merger, see Salt v Cooper (1880) 16 Ch D 544, 549 (Sir George Jessel MR)19 Jack Moser, ‘The Secularization of Equity’ (1997) 26 Capitol University Law Review 483, 48720 Frank Tudsbery, ‘Equity and the Common Law’ (1913) 29 Law Quarterly Review 154, 156

3

law or the law of God’.21 However, once a decision had been recorded, it stood as precedent, and gradually the ‘rigour of the law’ developed.22 With time, the common law has become well-known for this rigour and disinclination to bend the rules to accommodate changing circumstances. Its fundamental drive for certainty over flexibility caused concern. The strictness that came with the common law could ‘work injustice, because the judges preferred to suffer hardship in individual cases than to make exceptions to clear rules’.23

Tudsbery argues that equity must have had some influence on the common law from the start, since principles such as reason and fairness govern the common law when it adjudicates decisions for the first time in the absence of any precedent.24 Where cases arise outside the rules, the previous rules are “distinguished” and new rules are created. In this way the common law grows and develops. This has been referred to as the “genius of the common law”, its flexibility to adapt to new circumstances. It would be wrong to call the common law static. However, the rules once established stand firm. If a case arises within the rule, the rule will be applied strictly, despite any perceived injustice that might cause. It is in these cases that the need for equity, as a counterbalance, arose. English equity emerged out of the Lord Chancellor’s power to hear complaints from those whom the common law had failed. Some petitions were appeals against common law decisions. Petitions were also brought by those who could not sue at common law because their claim was not supported by an established writ. Others brought petitions to Chancery out of fear of bias from local judges or reprisals from powerful defendants, such as knights or local gentry.25 Originally, complaints were addressed to the Royal Council; it was the Lord Chancellors, with their legal training, who eventually became the arbiters of the “petitions for grace”. Where the common law had caused injustice, the aggrieved party could obtain exceptional redress. This redress did not affect the common law and it did not set precedent; it was a purely individual remedy. What sets the Lord Chancellors apart from the common law judges were their background. Nearly all medieval Lord Chancellors were clerics, indeed senior bishops, who necessarily were trained in canon law.26 The exact influence of canon law on English equity is subject to debate. There was not a direct translation from the ecclesiastical courts into Chancery, but there are some stark similarities, both in terms of substantive and procedural rules. Haskett writes that ‘the bishop-chancellors did not need to invent the principles informing their work in the court’.27 Coing has some ‘reservations’ as to the extent of the influence of canon law, and similarly Kagan in his formidable comparative study of equitable systems says that uncertainty still remains to the extent of canon law influence over Jewish and Roman influences.28 It is undeniable that there was some influence, and most likely the influence was

21 K Kahana Kagan, Three Great Systems of Jurisprudence (Stevens & Sons, 1955), 3322 Tudsbery (n 20), 15623 J H Baker, An Introduction to English Legal History (4th edn, Butterworths, 2002), 11824 Tudsbery (n 20), 16125 By way of example, consider William Baildon (ed), Selden Society, Vol 10, Select Cases in Chancery, 1364-1471 (Bernard Quaritch, 1896), Case 4, page 5 – a claimant from Beverly alleged that servants of the Archbishop of York had acted tortiously on the Archbishop’s instructions. The Archbishop was also Lord of the Manor in Beverly and would thus be a rather biased adjudicator; Case 10, page 11 – the claim was against a violent knight, the petition saying that “no one dare” bring a local suit against him; Case 22, page 27 – similarly, the petitioner feared violent reprisals if he was to bring a claim in the local court. The Royal authority of the Lord Chancellors and the penalties of failing to acknowledge a summons to Chancery seemed to assuage concerned claimants. 26 Timothy Haskett, ‘The Medieval English Court of Chancery’ (1996) 14 Law & History Review 245, 247; Moser (n 19), 49227 Haskett (n 26), 26028 Helmut Coing, ‘English Equity and the Denunciatio Evangelica of the Canon Law’ (1955) 71 Law Quarterly Review 223, 238; Kagan (n 21), 14

4

extensive. Importantly, we know that the juridical use of “conscience” was a ‘clerical invention’.29 The fact that medieval Lord Chancellors were clerics has long been pointed out in judicial comments.30 The religious nature of the Chancellor was also noted in the medieval petitions themselves. The petitions abound with references to God and Christ. One petition, for instance, asks the Lord Chancellor for a remedy ‘to the honour of our Lord Jesus Christ’.31 It highlights the prevailing religious undertones in the Chancery led by a clerical Lord Chancellor. It is a vital historical fact that these petitions for redress were determined by clerics. They brought their knowledge and training in the canon law with them into Chancery, and drew their inspiration from this source. This theological basis of English equity helps explain its substantive and procedural rules.

B. Who is at the centre - the claimant or the defendant?

One of the fundamental differences between the common law and equity is who is at the centre of adjudication. The underlying aims of the systems differ and the distinction lies between the common law’s individualism and equity’s broader focus on communal morality and ethics. The common law is based on an ‘individualist philosophy’.32 It takes a laissez-faire approach and intervenes where there is a serious dispute between two or more parties. It allows Party A to vindicate a legal right against Party B. The redress generally takes the form of a “reset”, namely restoring the parties to their pre-dispute situation.33 The reason that damages are awarded is based on commercial concerns.34 If a man bought some apples in the marketplace, but later found the apples to be defective, the commercially oriented common law would order the seller to refund the purchaser. The idea is that using the refund, the purchaser can buy new apples from a different supplier. It is marketplace economics in action. The common law has no deeper function than this. Equity cannot be approach in this way. No doubt misunderstandings happen when common lawyers try. A rather bemusing quote is found in a House of Lords decision handed down after the 1875 merger. Lord MacNaughten writes that ‘some confusion, however, had recently been introduced by a decision of a most eminent judge, who was naturally less familiar with the doctrines of equity than with the principles of common law’.35 The two systems must be approached differently. Equity focuses on broader moral questions of right and wrong, as opposed to the common law seeking merely to restore a legal wrong through (primarily) financial compensation. The common law focuses on the claimant and restoring the claimant’s loss. It is apt to call the common law “claimant-focused”. Equity is the opposite. It would be convenient to call equity “defendant-focused”, but that is a simplification. Equity is generally defendant-focused, but also focuses on whoever has legal entitlements or who occupies a special office, such as fiduciaries. Rather than giving financial compensation to redress a legal wrong and sending the parties on their way, equity seeks to address the wrongdoer’s conscience. This was explained in Norton v Reilly where the Lord Chancellor stated that ‘this court…has a conscience to relieve’.36 Equity seeks to make the wrongdoer a better person. It is virtue-29 George Spence, The Equitable Jurisdiction of the Court of Chancery, Vol 1 (Lea and Blanchard, 1846), 41030 Jones v Morley (1702) 12 Modern 159, 162; 88 ER 1234, 1236 (Holt CJ)31 William Baildon (ed), Selden Society, Vol 10, Select Cases in Chancery, 1364-1471 (Bernard Quaritch, 1896), Case 91, page 8432 Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360, 368 (Lord Hoffmann)33 E.g. for breach of contract, see Robinson v Harman (1848) 1 Exch 850, 855 (Parke B)34 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, 353 (Lord Bridge)35 Tailby v Official Receiver (1888) 13 App Cas 523, 546 (Lord MacNaughten) 36 Norton v Relly (1764) 2 Eden 286, 288; 28 ER 908, 909

5

ethics in action. The wronged party, of course, receives redress, but the focus of equitable remedies is to relieve a wrongdoer’s troubled conscience. It is the failure to appreciate this fundamental difference that leads to misunderstandings in trying to understand equitable rights and remedies. They do not seek to compensate the wronged party. They seek to morally absolve the wrongdoer. Simpson argues that the term conscience in medieval equity ‘connoted what we now call the moral law as it applied to particular individuals for the avoidance of peril to the soul through mortal sin’.37 For example, Archbishop Morton in one case stated that unless restitution was paid the defendant would be ‘damned in Hell’, and that granting such restitution was done in ‘accordance with conscience’.38 As such, the primary concern ‘was not with the petitioner but with the respondent and of the good of his soul’.39 For instance, in The Earl of Kildare v Eustace, counsel explained that Chancery ‘proceedings are to reform the conscience’ of the wrongdoer.40 This is the basis of in personam judgments, to ‘look after the losing party who has done some wrong or proposes to do wrong’.41 More recently, Prescott QC explained that the Court of Chancery ‘ordered the defendant to behave as a righteous man would have done in that particular situation’.42

That the medieval Chancellors were bishops has a key role to play in this. As clerics, they were interested in the state of the soul of the defendant. Even though equity always was a secular jurisdiction, one cannot overlook that this was the mind-set of those Chancellors, and this is how equity was formed. The theological link is often pointed out in modern equity treatises, but its fundamental implication on the substantive nature of equity is rarely explored in detail. That is to the detriment of lawyers and law students alike. The question is whether the wrongdoer has acted unconscionably. If the answer is yes, the petition is upheld and a remedy is awarded. The purpose of this remedy is to relieve the defendant’s conscience. This is contrary to the common law, where the remedy seeks to compensate the claimant. Understanding this fundamental distinction helps clarify the differences between the common law and equity and why they have developed different sets of remedies. It is also important to recognise the theological origins of this distinction, because it is in the theological debates that we will also find the definition of conscience and the meaning of unconscionable behaviour.

3. The Scholastic conscience and morality

We have seen how equity was inspired by the medieval canon law, administered by senior clergy. Conscience itself came out of the canon law. It is not a stretch, therefore, to posit that equity’s conscience takes the form and content of how the medieval theologians saw conscience. That objective view of conscience was well-known in medieval society.43 The

37 AW Brian Simpson, A History of the Common Law of Contract: The Rise of the Action of Assumpsit (OUP, 1975), 39838 Yearbook 7 Henry VII (1491) f 10 p 2, cited in Dennis R Klinck, ‘Lord Nottingham and the Conscience of Equity’ (2006) 67 Journal of the History of Ideas 123, 135; quoted as “well done according to conscience” in Charles Keigwin, ‘The Origin of Equity: Part III’ (1929-1930) 18 Georgetown Law Journal 215, 225, who gives the year as 1489. 39 Simpson (n 37), 39940 The Earl of Kildare v Sir Morris Eustace (1686) 1 Vernon’s Cases in Chancery 405, 405; 23 ER 546, 546; on the facts the claim was dismissed41 Simpson (n 37), 39942 R Griggs Group Ltd v Evans [2005] Ch 153, [39] (Peter Prescott QC)43 Timothy Haskett, ‘Conscience, Justice and Authority in the Late-Medieval English Court of Chancery’, in Anthony Musson (ed), Expectations of the Law in the Middle Ages (The Boydell Press, 2001), 159

6

argument is that the scholastic idea of conscience was carried over by the clerical Lord Chancellors into equity. What when was that Scholastic conception of conscience? Marenbon writes that the prevalent modern understanding of conscience (as a subjective appeal to one’s own morality) can lead to a misunderstanding of the Scholastic understanding of conscience.44 They have to be carefully distinguished.

A. The Scholastic view of conscience

The Scholastics saw conscience as the process of moral reasoning. Based on a view posited by St Jerome, moral reasoning (conscience in the broad sense) was itself divided into two distinct processes, termed “synderesis” and “conscience” (in the narrow sense).45 St Jerome stated that he drew his distinction between synderesis and conscience based on earlier Greek philosophy. There is, however, a particular problem with this division. Modern scholarship argues that St Jerome misread or misunderstood the early sources when he distinguished between synderesis and conscience; rather they are Greek and Latin respectively for the same concept.46 Exactly how St Jerome arrived at his conclusion might never be fully known, since many of his original sources are lost or unknown. Misunderstanding or not, theologians followed suit and saw synderesis and conscience as two separate things, though there was disagreement as to exactly what they were and the respective roles they served. Philip the Chancellor wrote the ‘first treatise on conscience’ around 1235, ‘which set the pattern’ for later works on conscience.47 He drew the distinction between synderesis which knows general moral precepts and conscience which applies those moral precepts to particular actions.48 This distinction was followed by St Thomas Aquinas, and broadly sums up the Scholastic conception of conscience. Alongside St Thomas, St Bonaventure is one of the most influential medieval theologians. His division was slightly different. St Bonaventure argued that synderesis was the “spark of conscience”.49 It was in the affective element of the mind, and was the catalyst for good action. As part of the rational mind, conscience alone, as knowing and applying morality, is not sufficient to make people act. This proposition carefully followed Plato and Aristotle – reason alone is no catalyst for action. Conscience and synderesis are thus closely interconnected, one the catalyst and the other the judge. As Langston writes, to Bonaventure, ‘synderesis is the desire for the good and conscience is an expression of synderesis’ and thus ‘following one’s conscience is the means for pursuing the good’.50 Interestingly, Bonaventure argues that our regret at not doing “good” comes from synderesis, as part of the affective side, rather than conscience, which is purely rational.51 However, the two work in tandem. Conscience tells us what is good and synderesis allows us to emotionally react.

44 John Marenbon, The Philosophy of Peter Abelard (CUP, 1997), 27345 St Jerome, Commentary on Ezekiel, 1.7; cited in Timothy Potts (ed and trans), Conscience in Medieval Philosophy (CUP, 1980), 79; Arthur McGrade, John Kilcullen, and Matthew Kempshall, The Cambridge Translations of Medieval Philosophical Texts, Vol II: Ethics and Political Philosophy (CUP, 2001), 17046 Robert Greene, ‘Synderesis, the Spark of Conscience, in the English Renaissance’ (1991) 52 Journal of the History of Ideas 195, 195; McGrade, Kilcullen, Kempshall (n 45), 169; Anthony Fisher, Catholic Bioethics for a New Millennium (CUP, 2012), 4447 Timothy Potts, Conscience in Medieval Philosophy (CUP, 1980), 1248 Philip the Chancellor, Summa de Bono; cited in Potts (n 47), 104 49 St Bonaventure, Commentaries on the Sentences of Peter Lombard, Book II, Distinction 39,Article 1, Question 3-4b; cited in McGrade, Kilcullen, Kempshall (n 45),190 50 Langston (n 3), 3551 Bonaventure (n 49), 190; see also Langston (n 3), 31

7

St Bonaventure divided conscience into two parts, which Langston has termed the “potential conscience” and the “applied conscience”.52 The potential conscience knows and learns moral precepts. It is emphasised that this is not a static function, but that people gradually develop their understanding of morality through learning and experience. The applied conscience, as the name suggests, applies the moral precepts to particular situations. Conscience, to St Bonaventure, can be wrong, either because it does not know enough moral precepts or because known moral precepts are ‘misapplied’.53 It emphases the need to continuously educate the conscience, through both experience and study. St Thomas Aquinas, as said, followed Philip. The distinction between synderesis and conscience is drawn perhaps in a more straightforward fashion. Synderesis contains our moral precepts. Conscience applies those precepts to particular situations.54 St Thomas wrote especially about the inborn moral principles which we know exclusively through reason.55 Synderesis thus is primarily inborn but also develops through learning and experience. That certain moral precepts are inborn has been discussed by later philosophers, such as Kant, and has been more rigorously demonstrated by modern psychology in the works by Carl Jung.56 Though there are some differences between St Bonaventure and St Thomas, there is also a broad agreement. Walsham summarises it by saying the Scholastic conscience is a ‘syllogistic dialogue between the synderesis (a storehouse of premises and precepts) and the conscientia (an active witness which applies those rules to particular cases)’.57 The modern Catholic Church maintains a Thomist conscience, a form of moral reasoning which applies the dictates of the natural law and the teachings of the Church itself.58 Thus, as we enter the 14th and 15th centuries, we can see broadly how conscience was understood. The summary above glosses over an enormity of theological differences between St Bonaventure and St Thomas, not to mention the other theologians who wrote in this time. However, it is sufficient for present purposes. Conscience (in the broad sense), and its duality between synderesis and conscience (in the narrow sense), was moral reasoning. It follows the Scholastic tradition of giving primacy to reason. What, then, was moral reasoning? This, broadly speaking, tied in with the concept of the natural law, also referred to as the law of reason. The natural law is ‘revealed through the instrument of reason’.59 Moral reasoning through the natural law, primarily, is engaging with those moral precepts which are inborn in all humans and are thus known through reason alone. To these are added more specific rules which are learnt. What this points to is an objective, or communal, sense of morality, which is shared within a group of people. St Thomas explained where our rational mind begins, writing that since ‘good is grasped as always desirable, the first premise in reason’s planning of action is that good is to be done and pursued and evil avoided’.60 Everything else flows from this principle, and includes the

52 St Bonaventure, Commentary on Peter Lombard’s “Books of Judgments”, Book II, Distinction 39, Article 1, Question 1-1; cited in Potts (n 47), 111; Douglas Langston, ‘The Spark of Conscience: Bonaventure’s View of Conscience and Synderesis’ (1993) 53 Franciscan Studies 79, 8253 Langston (n 3), 2754 Langston (n 3), 3955 St Thomas Aquinas, Summa Theologica, 1a. lxxix 12, cited in Thomas Gilby, St Thomas Aquinas – Philosophical Texts (OUP, 1951), 290-29156 Immanuel Kant, Critique of Pure Reason (Max Muller (trans), The MacMillan Company, 1896), 1-2; Carl Gustav Jung, Psychological Types (H.G. Baynes and R. F. C. Hull (trans), Routledge, 1991), 21257 Alexandra Walsham, ‘Ordeals of Conscience: Casuistry, Conformity and Confessional Identity in Post-Reformation England’ in Harald Braun and Edward Vallance (eds) Contexts of Conscience in Early Modern Europe 1500-1700 (Palgrave, 2004), 3358 The Catechism of the Catholic Church (Burnes & Oates, 2000, reprint 2012), [1778]-[1785]59 Bowman v Secular Society Ltd [1917] AC 406, 469 (Lord Buckmaster)60 Thomas Aquinas, Summa Theologiae (Timothy McDermott (ed), Concise Translation (Methuen, 1989)), 287

8

promotion of life and community.61 This builds up to the framework of Christian morality, which are the precepts that the synderesis does and ought to have. Summarising Christian morality is not the easiest task. The most concrete summaries are probably those given by Jesus himself in the Gospel of St Matthew, namely the Beatitudes and the Judgment of the Nations.62 A particular focus lies on protecting the weak and the vulnerable and ensuring a form of social justice, that no one is taken advantage of and that money does not rule. Ralph Newman writes that the ‘vision of brotherhood of the Prophets of the Old Testament was carried by Jesus into Christianity as the doctrine of charity, which meant love and concern for one’s fellow men’.63 The Christian conscience is deeply rooted in community and compassion. The Catechism of the Catholic Church also emphasises, firstly, the so-called Golden Rule, of doing to others what you would want them to do to you, and secondly, that the ends do not justify the means.64 These precepts are recognisable in equity.65

The scholastic conception of conscience, thus, can best be seen as a part of rational mind; an element of reason. Through conscience, morality is known, first by reason, and additionally taught by external factors (which, to the scholastics, primarily meant the Church). That knowledge or understanding of morality is stored in the synderesis. Whenever a course of action is proposed, or reflected upon in hindsight, the conscience applies those moral precepts to the course of action, and determines whether or not it is in accordance with morality. Since reason is shared by all people, the scholastics saw morality as being objective, or communal. It was known to all people, and all were equally assisted in developing their conscience through Church teaching. It allowed for an objective baseline on which to assess whether a person had acted conscionably or not. It is this that made conscience a useful juridical tool.

4. The Authority of Conscience

Samet writes that ‘“conscience” is not an obvious candidate to serve as the cornerstone of legal standards in private law’ and if moral standards are to be used, as Samet thinks they should, she asks ‘why not use a straightforward language of morality, like “unethical” or even “contrary to their best moral judgement” etc?’66 Indeed, even references to “morality” or “ethics” can be surprising in a legal context, given the modern prevalent jurisprudential view that law and morality should be separated.67 A fuller understanding of the scholastic conscience may help explain why conscience was adopted as a juridical concept to begin with. We will focus on the authority that scholastic theology has attributed to conscience. Conscience in early Christian theology was perhaps the most important part of the rational mind. It was, in many ways, a direct link to God. Philo of Alexandria, writing during the first decades after the birth of Christ, was, perhaps, the first to fully postulate that conscience was the guiding voice of God. Writing from a Hellenic Jewish perspective (and thus referred to 61 Ibid, 28762 Matthew 5:1-12; 25:31-46. These two passages were recommended as aptly summarising and expressing Christian morality by Pope Francis in an address at the World Youth Day in 2013: http://www.vatican.va/holy_father/francesco/speeches/2013/july/documents/papa-francesco_20130725_gmg-argentini-rio_en.html (accessed 13/11/2013).63 Ralph Newman, ‘Equity in Comparative Law’ (1968) 17 International and Comparative Law Quarterly 807, 80864 The Catechism of the Catholic Church (n 58), [1789]65 See eg, Fry v Lane (1888) 40 Ch D 312, 322 (Kay J); Lawrence v Poorah [2008] UKPC 21, [20] (Lord Walker); Nick Piška, ‘Ramsden v Dyson (1866)’ in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in Equity (Hart Publishing, 2012), 28666 Samet (n 6), 1367 See, for instance, HLA Hart, ‘Positivism and the separation of law and morals’ (1957) 71 Harvard Law Review 593

9

synderesis rather than conscience), he noted that the main aim of Jewish life was fulfilment of the law, which lead to God. Conscience, the guiding voice of God, was necessary to keep people from straying into sin.68 St Paul, writing in the early Christian tradition, saw conscience as the ‘human capacity to know and choose the good, the mind thinking morally and the will acting responsibly’; most importantly, it was not ‘some special faculty different from the rest of human thinking and choosing nor is it some secret wisdom given only to the few’.69 It is an essential part of the rational mind. Another important theologian was St Augustine of Hippo. His view of conscience was focused on the individual’s contact with God. St Augustine argued that ‘man can find God through introspection’.70 St Augustine considered conscience as ‘the most reliable witness’ to the ‘integrity and truthfulness’ of our acts, because conscience was ‘conscience before God’.71 It is clear to St Augustine that our conscience is known to God and it is our link to God. St Augustine asks ‘what could be hidden in me’ from God ‘unto whose eyes the abyss of man’s conscience is naked’.72 He continues by saying that his conscience daily confesses to God.73 St Augustine continues by saying that his ‘confession’ to God is therefore ‘made silently’ yet ‘not silently’.74 It is private to us, but at the same time known to God. These are important reflections to note at the outright. From a theological perspective, conscience, as a direct “link” between a person and God, is clearly something of great importance. It should be listened to. Though medieval theologians toned down the view that conscience speaks directly to God, they do continue in a very similar vein. St Bonaventure, for instance, continued the thoughts of the early scholars, and wrote that the commands of conscience come not from ‘itself’ but ‘from God, like a herald proclaiming the edict of a king’.75 Since conscience is the ‘internal representative of God’, we must always act in accordance with our conscience.76 This is true even if our conscience tells us to violate God’s law, in cases where such violation is done in ignorance.77 Deliberately acting against God’s law, and thus against our conscience, is wrong.78 Where there is some ignorance, St Bonaventure stresses the importance of seeking guidance.79 St Thomas Aquinas similarly posited that conscience must be obeyed. St Thomas explained that ‘a mistaken conscience’ is one which is inconsistent with ‘the law of God’; however, because any decision of conscience is ‘construed as the law of God’, a person who ‘goes against it contravenes the law of God’.80 St Thomas writes that ‘every judgment of conscience, be it right or wrong, be it about things evil in themselves or morally indifferent, is obligatory, in such wise that he who acts against his conscience always sins’.81 This seeming contradiction comes from the importance that St Thomas places on reason. He wrote in the Summa Theologica that to ‘disparage the dictate of reason is equivalent to contemning

68 Anders Schinkel, Conscience and Conscientious Objections (Pallas Publications, 2007), 14069 Anthony Fisher, Catholic Bioethics for a New Millennium (CUP, 2012), 43; see eg Romans 2:15-16, 2 Corinthians 4:270 Schinkel (n 68), 16571 Karen S Feldman, Binding Words: Conscience and Rhetoric in Hobbes, Hegel, and Heidegger (Northwestern University Press, 2006), 1372 St Augustine of Hippo, The Confessions of St Augustine (Rev E Pusey (trans), John Henry Parker, 1838), 18273 Ibid, 18374 Ibid, 18375 St Bonaventure (n 49), 18576 St Bonaventure (n 49), 18477 St Bonaventure (n 49), 18378 Langston (n 3), 2779 St Bonaventure (n 49), 18580 St Thomas Aquinas, Disputations, XVII de Veritate, 4, ad 1, cited in Gilby (n 55), 29181 St Thomas Aquinas, III Quodlibet 27, cited in Gilby (n 55), 291

10

the command of God’.82 He continued by saying that ‘conscience is the dictate of reason’, and reason has a higher standing than the will, and thus St Thomas argued that ‘the will which disobeys the reason, whether true or mistaken, is always in the wrong’.83 This speaks to why both synderesis is acted upon and why conscience is obeyed – a failure to do so is a sin and impacts of the person’s standing with God and his immortal soul. Reason is paramount and must be followed, since reason itself is a gift from God. St Thomas writes that ‘a good or bad act is tested by its agreement or otherwise with reason instructed by the divine law, whose principles may be inborn, acquired, or infused’.84 Again, this speaks of the importance of moral training, which “infuses” the conscience with the morality of the Church. This view of conscience as the internal voice of God was backed up by the work of the psychologist Carl Jung. One of Jung’s great contributions to psychology was the discovery of the collective unconscious. The collective unconscious ‘is that portion of the psyche which can be differentiated from the personal unconscious by the fact that its existence is not dependent upon personal experience’.85 To Jung, the collective unconscious consists of two things, namely instincts and archetypes.86 These archetypes are universal “archetypes” of human characters and behaviour across all societies.87 These ‘primordial images’ are ‘predispositions or potentialities for experiencing and responding to the world in the same ways’ as a person’s ancestors.88 One of Jung’s examples is the fact that all ‘ages before us have believed in gods in some form or other’.89 This is despite the absence of any “objective” or external proof of the existence of deities. Jung also commented on the theological arguments that conscience is the voice of God. Gates, in agreement, argues that seeing conscience as the voice of God is a ‘psychological truth’ because ‘religious sentiment’ is a Jungian archetype (the God archetype). This archetype is described as that ‘sense of awe’ felt when in the ‘presence of a reality that has a majesty surpassing comprehension’.90 The “inner voice” of conscience, a sort of instinctive understanding of right and wrong, can produce this sense of awe. Hence, the voice of God. Jung sees the conscience itself as inherited and part of the archetypes in the collective unconscious.91 The collective unconscious speaks clearly of the reality of an objective, communal morality, and that there are moral precepts common to all people. It gives credence to the scholastics’ primacy of reason and the natural law. Summarising this short study, we can come to see the importance of conscience. Throughout Christian theology it has been seen as the voice of God speaking within us. It was the voice that led us down the virtuous path. We can recognise right and wrong instinctively; sometimes we just know the right thing to do. Sometimes that knowledge can surprise us, because we are unsure where it came from. It is not surprising that religious communities attach great importance to this inner voice. This religious view has been backed up by psychological studies. Conscience is not exclusively linked to religious thought. The theological and psychological reality and importance of conscience can also explain why the canon law started using conscience as a guideline for assessing behaviour, and why this was

82 St Thomas Aquinas, Summa Theologica, 1a-2ae, xix 5, ad 2, cited in Gilby (n 55), 28483 St Thomas Aquinas, Summa Theologica, 1a-2ae, xix 5, cited in Gilby (n 55), 29284 St Thomas Aquinas, Disputations, II de Malo, 4, cited in Gilby (n 55), 28185 Calvin Hall and Vernon Nordby, A Primer of Jungian Psychology (Mentor, 1973), 3986 Andrew Fritzsche, ‘The Role of the Unconscious in the Perception of Risks’ (1995) 6 Risk: Health, Safety & Environment 215, 220 87 Carl Gustav Jung, The Archetypes and the Collective Unconscious (Princeton University Press 1968, tenth printing 1990), 4388 Hall and Nordby (n 86), 3989 Jung (n 87), 2390 Larry Gates, ‘Conscience as the Voice of God: a Jungian View’ (1992) 31 Journal of Religion and Health 281, 281-28291 Carl Gustav Jung, Civilization in Transition (R. F. C. Hull (trans), Routledge & Kegan Paul, 1964), 440

11

later transplanted by the clerical Chancellors into English equity. Because of its great religious importance, conscience was known in society. Haskett writes that of ‘all the principles at work in the development of law in the late Middle Ages, conscience was, I would suggest, the most widely understood, as well as one of the most important’.92 As such, it is not surprising that equity uses conscience as a legal concept.

5. The scholastic conscience in English equity

Can we find the scholastic conscience in English equity? Sadly, we cannot find it spelt out in those words. Prior to the Reformation there was no need to. After the Reformation, it probably could not be spelt out. However, within the judgments and other sources are clear references to the scholastic conception of conscience. It is posited that these are sufficiently persuasive to prove the point. What we are looking for are references to (a) that conscience is an act of reason, and (b) that conscience is something communal, objective, and common to all parties. It is not the subjective views of either judges or litigants.

A. Scholastic conscience in medieval equity

There is, regrettably, a dearth of records from the medieval Chancery. Since judgments handed down in Chancery were personal, and did not set wider precedent, they were generally not recorded and made widely known. From the 15th century, however, some decisions were noted in the Year Books, which were annual summaries of chancery proceedings. What remains are numerous petitions to the Chancery, on which the outcome has occasionally been recorded. The petitions, some of which have been published by the Selden Society, give great insight into the medieval Chancery. In these petitions and Year Books we can find some references to a scholastic conscience. References to conscience prior to the 1420s seem sparse. That, however, does not impact on the overall equitable use of conscience as a moral standard; the same objective moral standard was previously referred to as God, charity, right, reason or justice. It is morality by any other name. The earliest reference to conscience, from the petitions published by the Selden Society, is from between 1420 and 1422.93 The earlier pleas could, for instance, ask for judgment ‘as law and right demand’;94 one petition asks the Lord Chancellor to remedy an act which was ‘against right and reason’.95 Several petitions are simply brought ‘For God and in way of charity’.96 At least one reference is to ‘holy charity’.97 Numerous petitions seem to be made “For God and Charity” without fully giving any other reasons or even invoking any known equitable doctrine.98 Indeed, the reference to God and Charity seems to have been a standard-form signoff in petitions. As said, the scholastic conscience is associated with moral reasoning and the natural law. The natural law, where the objective morality was found, has itself always been referred to as

92 Timothy Haskett, ‘Conscience, Justice and Authority in the Late-Medieval English Court of Chancery’, in Musson (n 43), 15993 Baildon (n 25), Case 121, page 119. The National Archives refer to one dated Chancery petition from 1385 mentioning conscience, see http://discovery.nationalarchives.gov.uk/details/r/C9335527. Some of the petitions in the Selden Society publication are undated. 94 Baildon (n 25), Case 19, page 2395 Baildon (n 25), Case 25, page 30; Case 63, page 6496 Baildon (n 25), Case 124, page 121. The phrase ‘by way of charity’ seems rather common; see e.g. Cases 126, 127, 130. 97 Baildon (n 25), Case 45, page 4998 Baildon (n 25), Case 8, page 9; Case 31, page 35; Case 36, page 40

12

the law of reason.99 As such, references to “right” or “reason” do not present something altogether different from “conscience”. In the medieval theological context, there would be no difference between saying that someone acted against “good conscience” or against “reason” or against “what is right”. After the 1420s, references to conscience became more and more common. Two petitions are particularly informative as to the role of conscience in Chancery. The first is an undated petition brought by John Horsmonger for the payment of a £40 debt owed. The petition specifically refers to the Chancery as ‘the Court of Conscience’ and asks that the defendants ‘answer thereto as reason and conscience demand’, since ‘otherwise the said suppliant is and will be without remedy, which God forfend’.100 The second, from 1457, is a petition brought by Robert and Agnes Bale against Nicholas Marshall, concerning an inheritance. The petition alleged that Marshall had wrongfully taken possession of certain goods contrary to a testamentary agreement. It asks that Marshall repays ‘as good faith and conscience requires’. Further, the petition asks that Marshall must ‘answer after the law of conscience, which is law executed in this court for default of remedy by courts of the common law’.101 In this petition the judgment was recorded. The claim succeeded and an order for repayment was made for 194 marks. The decision was handed down after ‘mature deliberation with the King’s justices of both Benches and others of the King’s Council then and there present’.102

A lot can be taken from these two petitions. First, certainly by the mid-15 th century, Chancery had become known as the court of conscience. It is an important stage in the development of English equity. Secondly, the Bale petition refers to the “law of conscience”. It signifies that conscience was something more than simply a byword for justice, and further suggests that there was some objective moral “law” that the Chancellor must apply. Third, the Bale petition clearly states that Chancery was there to remedy a default in the common law courts, and the Horsmonger petition similarly explains that equity must provide such a remedy, because God would not permit justice to fail for want of a remedy at common law. At this point in time, the role of the Chancery had been established. It is clear from all these petitions that the term conscience refers to something objective, which in effect would have been the natural law. The petitions write “as conscience demands”, or “as right demands”, or “as reason demands”. It is a constant referral to the objective morality found in contemporary society (namely that of the Catholic Church) and it is for the Lord Chancellor to apply that morality to the facts of the case. Roughley writes that in pre-Reformation equity, the clerical Chancellors would have dawns on ‘ecclesiastical doctrine and natural law philosophy’, such as papal decrees and the important Summa Angelica de Casibus Conscientiae.103 The petitions are all alleging that the defendant has somehow fallen below what that objective morality prescribes. Whilst the petitions do not directly describe conscience, the scholastic nature of conscience and moral reasoning comes through. In particular, there are no references to the personal views of the petitions (“I think the defendant has acted unconscionably”); rather the reference is to something communal (“the defendant acted contrary to the demands of conscience”). From the records available, it is posited that a scholastic conception of conscience was present in Chancery during this time.

99 Aquinas (n 60), 287100 Baildon (n 25), Case 123, page 121 101 Baildon (n 25), Case 143, page 146. The original text reads: ‘as good feith & consciens requyren’ and ‘answer after the lawe of consciens, whiche ys lawe executory in this courte for defaute of remedy by cours of the common lawe’. 102 Baildon (n 25), Case 143, page 150103 Fiona Roughley, ‘The Development of the Conscience of Equity’ in JT Gleeson, JA Watson, RCA Higgins, Historical Foundations of Australian Law, Volume 1 (The Federation Press, 2013), 158

13

B. Scholastic conscience in post-Reformation equity

Just prior to the Reformation in England, St German wrote the undoubtedly first treatise on English equity, the Doctor and Student dialogue. The main argument in the treatise centred on the nature and appropriate extent of equity’s jurisdiction, but it did contain views on how equity conceptualised conscience. In it, conscience is presented in the established scholastic manner. Hence, once the Reformation took hold in England, Chancery’s conscience did not become Protestant (either a Lutheran conception of conscience or later Anglican conceptions of conscience); indeed Roughley argues the reality was quite the opposite. The ‘sustained influence’ of St German meant that ‘scholastic conscience remained a touchstone of the theories of equity and conscience’ well into the 17th century.104 Indeed, beyond that. St German’s work has been comprehensively discussed elsewhere, and there is no need for repetition. Broadly, following the scholastic tradition, St German saw conscience as the duality of joining synderesis and reason (conscience in the narrow sense). Synderesis asks us to do “good”, reason tells us what is “good”, and thus conscience is doing “good”.105 It has a feel of St Bonaventure over it. It is right to say that St German is a key figure in shifting Chancery from a pure “court of conscience” (which, perhaps in many ways freely applied the natural law as the Chancellors understood it) to a “court of equity” – there to follow, supplement and fill gaps in the common law rather than a broader examination of conscience.106 Klinck writes that St German’s view ‘constitutes rather a shift of emphasis from the concern for the spiritual health’ of the defendant.107 Rather, it became a question of interpreting the common law, and ensuring that parties did not unconscionably insist in legal entitlements. This is due to St German’s definition of what reason is grounded upon. The dialogue was published in a time where there was growing opposition to Chancery; a particular argument being that the recourse to conscience and the natural law was ‘an arbitrary interference with the due course of law’.108 St German argued thus that reason is ‘grounded’, or informed, by human laws than therefore conscience is based on human laws.109 In essence, the determination of unconscionability is determined by the ‘common law rather than the decrees of the Church’.110 St German maintained the scholastic view that positive law was valid in so far as it did not contravene the Divine law or the law of reason. Conscience therefore was the combination of reason and positive law. St German has had a great deal of influence, but Chancery did not constrain itself as much as some had hoped. It never limited itself to interpreting the common law. The moral precepts of the natural law, as taught and explained by the Church, had long been used in medieval equity. These precepts had no doubt already become ingrained into equity. The conscience of equity thus came to be found within equity itself, and did not formally any longer come from the Church. As such, whilst equity and the Church formally split, the natural law, the moral precepts, stayed within equity. The scholastic conscience and its link to reason had become internalised. They could not be stripped out.

104 Ibid, 160105 Endicott (n 5), 562; see Christopher St German, Doctor and Student (TFT Plucknett and JL Barton (eds), Selden Society, 1974), 81 (synderesis), 85 (reason), 89 (conscience)106 Dennis R Klinck, ‘The Unexamined “Conscience” of Contemporary Canadian Equity’ (2000-2001) 46 McGill Law Journal 571, 581107 Ibid, 581108 Sharon Dobbins, ‘Equity: The Court of Conscience or the King’s Command, the Dialogues of St German and Hobbes Compared’ (1991-1992) 9 Journal of Law and Religion 113, 125109 Endicott (n 5), 562110 Dobbins (n 108), 124

14

An important judgment in equity is The Earl of Oxford’s Case. The judgement has recently been explored in an in-depth case comment by Ibbetson, who rightly notes that whilst the decision is remembered as a jurisdictional case, it truly was a case about the validity of a conveyance of land.111 However, we will focus on its common usage, namely as setting out the role and purpose of the Court of Chancery. The passage often cited from the judgment is where Lord Ellesmere states that the purpose of the Chancery is to correct men’s consciences.112 This, however, is not the only important statement in the judgment. Lord Ellesmere also writes that ‘Equity speaks as the Law of God speaks’.113 It is worth emphasising that The Earl of Oxford’s Case was decided in 1615, well into the Protestant Reformation (though before the religiously decisive events after the Civil War). The law of God is a reminder of English equity’s origin in the Christian canon law, and the religious ethos expounded by the early, clerical Lord Chancellors. In a later case, the Lord Keeper makes a similar observation, saying equity is a ‘universal truth’.114 Further, Lord Ellesmere writes that a ‘Serjeant is sworn to give Counsel according to Law, that is, according to the Law of God, the Law of Reason, and the Law of the Land’.115 Again, it shows the link between equity and the natural law (the law of reason). Another interesting statement was made by Lord Chancellor Parker in Trevor v Trevor, where his Lordship said that ‘what is reason, equity, and good conscience now, always was, and always would be so’.116 Whilst these statements do not explicitly confirm an objective conscience, they have a Scholastic tone, with the reference to the objectivity that comes with the natural law. In the case of Coke v Fountaine, Lord Nottingham explained the nature of equity’s conscience. Lord Nottingham said that ‘With such a conscience as is only naturalis et interna, this Court has nothing to do; the conscience by which I am to proceed is merely civilis et politica, and tied to certain measures’.117 Klinck argues that this reference to “measures” means rules, which ‘set standards or criteria’ against which conscience is judged.118 Again, the inherent existence of the scholastic conscience, with reference to an external and objective moral law, is evident. This distinction between the conscience where Equity will assist and the conscience which equity leaves to the individuals had been noted in earlier decisions.119 As such it was not a distinction that Lord Nottingham created, but rather ‘declaring what had become of the established doctrine of the Court’.120 Indeed, Macnair effectively “debunks” the case as unimportant, a possible reason why it was not reported until the 1820s.121 However, three centuries later, it is a useful historical source. This divide between a public and private conscience existed also in the medieval Church. Ecclesiastical claims concerning “conscience” were regulated and heard in two forums: the “internal”, namely the confessional, and the “external”, the canon law court. As Helmholz says, the ‘existence of the “internal” forum had the effect of hiving off from the Church’s

111 David Ibbetson, ‘The Earl of Oxford’s Case (1615)’ in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in Equity (Hart Publishing, 2012), 20112 The Earl of Oxford’s Case [1615] 21 ER 485, 486 (Lord Ellesmere LC)113 Ibid, 486 (Lord Ellesmere LC)114 Dudley v Dudley (1705) Precedents in Chancery 241, 244; 24 ER 118, 119115 The Earl of Oxford’s Case [1615] 21 ER 485, 487 (Lord Ellesmere LC)116 Trevor v Trevor (1720) 1 Peere Williams 622, 631; 24 ER 543, 547 (Lord Parker)117 Cook v Fountain (1733) 36 ER 984, 990 (Lord Nottingham); see also Haywood v Cope (1858) 25 Beav 140, 153; 53 ER 589, 595 (Sir John Romilly MR)118 Dennis R Klinck, ‘Lord Nottingham’s “Certain Measures”’ (2010) 28 Law and History Review 711, 714119 Anonymous (1602) Cary 12, 12; 21 ER 7, 7120 Spence (n 29), 417 121 Mike Macnair ‘Coke v Fountaine (1676)’ in Charles Mitchell and Paul Mitchell (eds), Landmark Cases in Equity (Hart Publishing, 2012), 61

15

public jurisdiction many acts that we would consider distinctly spiritual in nature’.122 This was centred on the fundamental ecclesiastical notion of, ‘de occultis non judicat ecclesia’, namely that the ‘Church does not judge secret matters’.123 Certain private acts of conscience were not the subject matter of the canon law. Only public acts of conscience could be heard in the ecclesiastical court. Given the close relationship between the canon law and the medieval Chancery, that Chancery would recognise the same divide is not surprising. The Chancery repeatedly referred to conscience as its own. Witnesses were deposed to “inform the conscience of the court”.124 In a later case, Lord Keeper Henley pointed out that ‘I sit in a court of conscience, and not in a court of conjecture’.125 Again, it is not about unfounded subjective opinions, but about proven facts. Later in the 19th century, Lord Eldon said that ‘in equity the conscience is ransacked’, that is to say, probed as to the facts of the matter.126 Lord Eldon goes on to say in Wright v Simpson that ‘Equity attaches upon his conscience’, suggesting that equity is some objective force that the defendant’s conscience must abide by.127 It points again to conscience being more that private knowledge but something that goes beyond that. As such, it is clear that the scholastic conception of conscience and the influence of the medieval Catholic canon law carried on well beyond the Reformation. It had become internalised into equity itself, and there was no need for references to an external moral law. This lack of references to an external law might have helped fuel the misunderstanding that equity is overly subjective and dependent on the personal views of judges. However, judges have generally been clear in stating that judgements are not based ‘upon any notions or arbitrary rules of [their] own’.128 Rather, the idea that conscience was a rational outcome that all parties could arrive at continued; a moral decision based on the ascertainable facts.

C. Scholastic conscience in modern equity

The doctrine of unconscionability has been reinvigorated in the past few decades. It is more frequently discussed by the judges. Many modern judgments speak clearly of an objective test for determining unconscionability, continuing the Scholastic conception of conscience. The courts accept that society changes but insists that equity does apply a communal morality, which must be brought in line with new developments. Young J explains in Lincoln Hunt Australia that ‘[w]hat is unconscionable will depend to a great degree on the court’s view as to what is acceptable to the community as decent and fair at the time and in the place where the decision is made’.129 It highlights that conscience is an objective force within equity and though capable of change applies equally to all parties. We can consider a few cases. Jones v Morgan concerned relief under an unconscionable bargain. Chadwick LJ said that the ‘enquiry is not whether the conscience of the party who has obtained the benefit of the transaction is affected in fact; the enquiry is whether, in the

122 R H Helmholz, ‘Conflicts between Religious and Secular Law: Common Themes in the English Experience’ (1990-1991) 12 Cardozo Law Review 707, 709123 Henry Ansgar Kelly, ‘Lollard Inquisitions: Due and Undue Process’ in Alberto Ferreiro (ed), The Devil, Heresy, and Witchcraft in the Middle Ages (Brill, 1998), 299. The word “occult” here has its traditional meaning of something secret, as opposed to its contemporary common usage as referring to something supernatural. 124 Anonymous (1603) Cary 58, 58; 21 ER 31, 31; Gartside v Isherwood (1783) Dickens 612, 613; 21 ER 410, 410; Smith v Earl of Pomfret (1770) Dickens 437, 437; 21 ER 339, 339125 Fisher v Touchett (1758) 1 Eden 158, 161; 28 ER 644, 645-646126 Ex parte Greenway (1802) 6 Vesey Junior 812, 813; 31 ER 1321, 1322 (Lord Eldon)127 Wright v Simpson (1802) 6 Vesey Junior 714, 736; 31 ER1272, 1283 (Lord Eldon)128 Dudley v Dudley (1705) Precedents in Chancery 241, 244; 24 ER 118, 119129 Lincoln Hunt Australia Pty Ltd v Willesee [1986] 4 NSWLR 457, 463 (Young J); his assertion was approved in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [175] (Kirby J)

16

view of the court, it ought to be’.130 It is an objective question. Similarly, equity uses the Baden-test to determine whether a party had knowledge of certain facts which would put him on notice of wrongdoing; five situations have been identified including where the party “should” have had knowledge or is deemed to have known because the party deliberately looked the other way.131 For some equitable claims, such constructive notice is sufficient to activate the conscience of that party. As such, it is not purely subjective. The same point was made by Lindsey J in Gonthier. It is worth quoting at length.

‘[I]n examining the conscience of a party … it is not only subjective considerations that may be relevant. A defendant could not, for example, escape an estoppel by asserting, even credibly, that his personal subjective conscience was only weakly responsive to the stimuli which others would have recognised and that he had thus failed to detect anything unconscionable in his behaviour. Nor is the information which the Court, in the course of its inquiry, imputes to a person necessarily only that of which that person had actual personal knowledge; it would not assist a defendant, for example, to assert that he had no knowledge of information as to which he had deliberately shut his eyes to avoid its acquisition. Unconscionability for these purposes is thus not tested only by reference to the actual subjective state of mind or of information of the defendant concerned’.132

Again, the judge is very clear that an objective conscience is used, since the court does not only look at actual knowledge. The five types of Baden-knowledge apply, the judge being clear that the court can “impute” knowledge to a defendant where the defendant should have had this information. Additionally a defendant cannot avoid liability because he personally did not understand the wrongdoing. Similarly, Lord Walker in Pitt v Holt, stated, in no uncertain terms, that the ‘evaluation of what is or would be unconscionable must be objective’.133 This underlines a clear recognition that equity’s conscience cannot be subjective, it cannot refer to either what the defendant personally might have thoughts, nor to what the judge in his absolute discretion might believe is right. We can consider a key decision of the Australian High Court. In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd, the High Court had to decide on the award of an interlocutory (interim) injunction to prevent a broadcast pending trial. The question of “unconscionability” was considered by the Court, because it had bearing on the main action itself: only if unconscionability was a serious action to hear at trial could it be right to grant an interim injunction pending that trial.134 The judgments elaborate on the role of conscience, and the division between certainty and judicial discretion. That time-honoured strife is not easy to reconcile. Gleeson CJ mentions the importance of not being led to the ‘misapprehension that the essential function of a court is to decide every case by a discretionary preference for one possible outcome over another’.135 The law must be based on established rules and principles, the same goes for the concept and use of conscience.

130 Jones v Morgan [2001] EWCA Civ 995, [35] (Chadwick LJ)131 Baden v Société Générale pour Favoriser le Developpement du Commerce et de l’Industrie en France SA [1993] 1 WLR 509, [250] (Peter Gibson J) 132 Gonthier v Orange Contract Scaffolding Ltd [2003] EWCA Civ 873, [4] (Lindsey J)133 Pitt v Holt [2013] 2 WLR 1200, [125] (Lord Walker)134 Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [17] (Gleeson CJ)135 Ibid, [20] (Gleeson CJ)

17

‘The conscience of the [defendant], which equity will seek to relieve, is a properly formed and instructed conscience. The real task is to decide what a properly formed and instructed conscience has to say about publication in a case such as the present’.136

I have italicised the last few words, as they can be changed for whatever equitable claim the court is concerned with. It is important to note the reference to the “conscience of the defendant” (in this case, the appellant); however, it is important not to get confused by the meaning of that phrase. It is not a reference to the defendant’s personal conscience. Gleeson CJ makes this very clear with his reference to a ‘properly formed and instructed conscience’. Though he does not use the term “objective”, in the context it is clear what Gleeson CJ is referring to. Similarly, Hollingworth J has posited that for ‘the conduct to amount to unconscionable conduct in equity, it must involve a high level of moral obloquy’.137 It strongly suggests that equity’s conscience remains linked to a communal morality. Further, as we have already seen, Prescott QC explained that the Court of Chancery ‘ordered the defendant to behave as a righteous man would have done in that particular situation’.138 The point could not be made clearer. Equity seeks to enforce a communal moral standard, to which all parties must adhere to. The picture that emerges is a continuation of the scholastic conception of conscience. The cases tell us clearly that equity’s conscience is not subjective or capricious, is not dependent on individual judges’ opinions on morality, and it does not automatically excuse defendants who believed they had acted properly. We see that equity’s conscience is the interplay of an objective morality and its application to specific facts, where parties are assessed not only on what they did but on what they ought to have done. It is true that some keywords are missing, such as references to reason. However, it is posited that the thrust of the judgments paints a clear picture, namely that conscience is moral reasoning applying known communal moral precepts. This conception of equity’s conscience has stayed true since English equity emerged in the medieval Chancery.

6. Conclusion

It is hoped that judges today would deepen their judicial examination of conscience. Given the centrality of conscience, judges should invest more time in explaining its function and definition. Sadly, it is the lack of judicial engagement with conscience that leads to the misunderstandings and arguments over the very use of conscience and its proper role in equity. As far as this is true, the critics of equity’s conscience are not altogether wrong. Without proper judicial engagement with conscience, it is not surprising that many find conscience peculiar, subjective and capable of capricious results. This article argues that equity should recognise that it originally adopted a Scholastic conception of conscience and that (though it has never been explicitly stated) equity continues to use this notion of conscience. Because the judges have not properly engaged with the idea of conscience and unconscionability, it is difficult to definitely prove that equity’s conscience is one way or another. At best, one can try to put the pieces together. As noted in the introduction, others have done so, but it has not led them to the Scholastic idea of conscience. This article has posited that link, by focusing on the medieval origins of equity and the link between the Chancery and the Church. Though equity began with a religious definition of conscience does not mean that that concept of conscience cannot be used today, when equity is fully secularised (as indeed it

136 Ibid, [45] (Gleeson CJ)137 Mete v Fiasco [2013] VSC 460, [252] (Hollingworth J)138 R Griggs Group Ltd v Evans [2005] Ch 153, [39] (Peter Prescott QC)

18

always was) and used in a wide range of cultures and religions throughout the common law world. In this sense, the conscience of equity is a combination of set moral norms (found in precedent) which the parties collectively must apply to the fact of the case. Here one can with an acceptable degree of certainty and predictability assess whether either party has acted unconscionably. This addresses the concerns about subjectivity and arbitrariness and gives conscience a real and tangible meaning. The onus now is truly on the judges to more comprehensively explain the nature of equity’s conscience. The importance attached to conscience in medieval theology can explain why the canon law, and subsequently equity, adopted conscience as a benchmark to assess the morality of behaviour. This, however, does not automatically justify equity’s continued use of conscience. That is a debate altogether different from this historical study. A brief point can be raised in this respect. Private law, surely, must be something more than merely the reallocation of money as compensation to injury caused by legal wrongdoing. The law says something further about our society and how we want that society to function. Law and societal morality should thus not be completely separated. Equity, as the guardian of conscience, maintains and enforces that morality. As a continuation of law and virtue ethics, it helps point the law and the community in the right direction.

19