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[justiciary]

Juridical Equity and IT

The distinction between Equity and Common Law is nowadays only of historical relevance. But it is worth looking briefly at this piece of legal history as an illustration of principles which affect rapidly-changing areas of law, such as IT law, today. After the Norman Conquest, the Common Law became a settled, nationwide system. But it was a limited system: it provided solutions to some kinds of dispute but not others. One example is that the only remedy it offered to a successful litigant was money compensation. If a defendant failed to meet his obligations under a contract, the plaintiff might want "specific performance" - that is, rather than money he might want the defendant to be made to do what he had actually contracted to do, perhaps to hand over a particular plot of land. Common Law had no mechanism to achieve that. In consequence, when it was useless to take a dispute to a lawcourt, people would petition the King to redress their various grievances, and the Chancellor (the officer to whom the King delegated this aspect of his work) would decide the cases in terms of what seemed to him fair -not by reference to specific laws, but in the light of his moral intuitions. That provided a cure for blatant injustices which the law of the time could not deal with. But it was problematic, because people's ideas of what is fair differ. It was said that legal decisions "varied with the length of the Chancellor's foot" - that is, there were no clear settled principles underlying them, different holders of the office would make decisions in unpredictably different ways.

Because this was unsatisfactory, in due course the practice of successive Chancellors crystallized into a set of rules of Equity  which are nowadays just as fixed and explicit as the rules of the Common Law - and which, consequently, do not inevitably yield results in individual cases that everyone would recognise as "fair". Equity and Common Law are still separate bodies of law, but in modern times the distinction matters only to professional lawyers. The reason why it is worth mentioning is that it illustrates the tension that exists between fair rules and predictable rules. Many of us as individuals tend to feel instinctively that fairness must be the overriding test of good law. If an existing law gives a result in a particular case that seems manifestly unjust then we may feel that the law is obviously bad and ought unquestionably to be changed. The trouble is, we also want the law to give predictability. We want the rules to be fixed and clear, so that we can make our plans knowing where we stand. It is in the nature of fixed rules that there will be individual cases where they give unfortunate results; we cannot have predictability and perfect fairness in all cases. People who run businesses often say that, for business purposes, predictability matters more than fairness. The suggestion is that, however arbitrary the rules might be, so long as a well-run business knows what the rules are and knows that they will be applied impartially, then it can find some way to succeed - whereas if laws are applied capriciously there is just no way to manage a business rationally. We shall notice this tension between fairness and predictability when we look at various areas of IT law. It may be that our instinctive preference for fairness above all, while natural and understandable, is not altogether appropriate for this business-oriented area of law.