Equity, a principle born out of necessity in ancient times, that continues to be an important body

I wrote this paper as the 'major assignment' component of a law unit I recently completed, Equity & Trusts.

I never miss an opportunity to share the brilliance of the great Ancient philosopher Aristotle,

I hope you find it a good read.

1. Introduction

Equity as commonly understood within our legal framework, is a body of law that originated in the Court of Chancery in the 14th century and currently exists in all Common Law jurisdictions as a separate and unique body of law essentially grounded in the concept of judicial discretion expressed in 'maxims'. Equity actually has a history which substantially predates this common understanding. The purpose of this paper, is to unpack the various ‘layers’ of antecedent laws and customs that have articulated Equity as a separate (and unique) body of law.

I will trace the very first mention of Equity in the social affairs of the ancient Greek City States and the powers of the judges of the day who applied the ‘common law’. This ancient form of ‘common law’ is very different to the modern day concept in the Anglo-American systems and I will delineate those differences. I will then trace Equity’s adaptation into ancient Roman jurisprudence in very much the same terms as it manifested in ancient Greece.

Equity is then incorporated into ecclesiastical law with the morphing of the ‘Roman Empire’ into the ‘Holy Roman Empire’ which effectively enshrines [the Aristotelian concept of] Equity into Christendom. Equity continues to play a vital part of Canonical jurisprudence in the modern day Catholic Church and I will reveal some of its uses there and within Islam.

Because equity is essentially ‘an appeal to conscience’ exercised by judicial discretion it has been closely associated with the concept of Natural Law. Several noteworthy jurisprudential scholars such as H.L.A. Hart and Ronald Dworkin join the likes of Lord’s Atkin and Denning to use equity (or discretion) as a vehicle for the creation of new legal remedies.

I will conclude with reasons why equity is a very important aspect of our legal framework that can intervene to assist the correction of ‘injustices’ that would (or could) otherwise inflict further pain and suffering.

2. Equity and the Modern Understanding

The term equity in our legal system refers to a particular set of remedies and associated procedures. These equitable doctrines and procedures are distinguished from "legal" ones. Equitable relief is generally available only when a legal remedy is insufficient or inadequate in some way.

By the 14th century the Chancery was operating as a court, and began affording remedies where the strict procedures of the common law worked injustice or provided no remedy to a deserving plaintiff. Chancellors often had theological and clerical training and were well versed in Roman and Canon law[1] mostly being Cardinals. This provided the ‘fertile ground’ in which to invoke this ancient ‘power’ to solve some of the excesses of the Common Law.

A criticism of Chancery practice was that it lacked fixed rules and that the Lord Chancellor was exercising an unbounded discretion.[2] The counter-argument was that Equity mitigated the rigour of the common law by looking to substance rather than to form. I will posit that they had to ‘borrow’ from a corollary of ancient legal maxims, to find ways to ‘temper’ their own Common Law which had become legalistic and rigid because of stare decisis. In an appeal to conscience in a very similar way to how equity worked in antiquity, they were able to ‘correct’ decisions that would have otherwise been too harsh.

Equity’s superiority over the Common Law dates back to 1615[3] when Sir Francis, by authority of King James I, upheld the use of the common injunction and concluded that in the event of any conflict between the common law and equity, equity would prevail. Equity's primacy in England was later enshrined in the Judicature Acts of the 1870s.

Equity via the Court of Chancery developed the concepts of trusts. In order to avoid paying land taxes and other feudal dues, lawyers developed a primitive form of trust called ‘the use’ that enabled one person (who was not required to pay tax) to hold the legal title of the land for the use of another person. The effect of this trust was that the first person owned the land under the common law, but the second person had a right to use the land under the law of equity.

Equity also expounded the doctrine of promissory estoppel which was first developed in Hughes v. Metropolitan Railway Co [1877] but was lost for some time until it was resurrected by Denning J in the controversial case of Central London Property Trust Ltd v High Trees House Ltd.[4] It is worth noting also that negligence (in tort) in Donohue v Stevenson was grounded in the Christian concept of “neighbour” particularly articulated by Australian Lord Justice Atkin.[5]

This leads into my next section, which is a look further back in time to where equity originates.

3. Equity in Ancient Times according to Aristotle

Contrary to that common view, it was actually the great philosopher Aristotle who first articulated the concept and use of equity within in the Greek Polis of the 5th Century BC:

“that justice which lies beyond the written law.”[6]

In Aristotle's Greek the terms "equity" and "equitable“ were described as epieikeia and epiekis, respectively. Epieikeia means simply "excellence" or "goodness." He uses them frequently throughout his books Nicomachean Ethics, Rhetoric and Politics and his quest (as the world’s first real empirical scientist) was one of ‘right’ morality of the individual, rooted in the virtues, aiming to [the benefit of] the common good.

Aristotle characterizes epieikeia in the specific sense as "a correction of law, where law falls short because of its universality” In Rhetoric he describes the equitable as "that justice which lies beyond the written law.“ In a unique way he says that Equity (or discretion as understood in Hartian, Dworkian or Denning terms) actually ‘fills the gaps’ in the rigidity of the Common, Human or Customary law.

Equity's role is to prevent the law from adhering too rigidly to its own rules and principles when those rules and principles produce injustice. Hence equity permits judges to depart from (set) legal principle in order to promote justice.

Aristotle’s principle of Equality also has two main aspects, the first of which is exhibited in the act of "distributing" certain matters between two or more persons, or "adjusting" these matters to their proper ratios. This according to Aristotle is called "distributive Justice," and it is the principle which demands that only equals be treated equally and which is always "proportionate equality," that is to say, a form of Justice which allots burdens according to the individual's ability to shoulder them and accords support in amounts which vary with the needs of each individual.[7]

The common law that is spoken about in Aristotle’s time is very different to our modern understanding of that concept embodied in stare decisis. There was no such requirement or ability in antiquity to ‘adhere to previous decisions’. The common law was simply the law which applied to all i.e. ‘A person should not steal’ and discretion was exercised if there were, what we call today, ‘mitigating circumstances’ for why the illegal act was carried out. Applying proportionate equality, in every case.

I will posit that much of (the current) Anglo-American Jurisprudential system is a carbon copy of Aristotelian legal systems recorded and cataloged by him with precision identifying our modern legal concepts of Contracts, Torts, Negligence, Evidence (expert and witness), Procedure (including procedural fairness), voluntary and involuntary acts in Criminal Law.[8]

His insightful understanding of Equity was then taken up in Jurisprudential Roman Law by a gradual process of applying the scientific methods of Greek philosophy to the subject of law.

Eventually religious leaders incorporated equity into the body of Canon Law and Islamic Law by thinkers such as Augustine, Averroes, Avicenna, Aquinas and others.

Most of the intricate knowledge we have about Aristotle and his brilliance we know thanks to Thomas Aquinas’ theological treatise, the Summa Theologica.[9] He unfolded Aristotle’s writings using the rhetorical technique of his day[10]. This was by way of ‘proposition’ followed by ‘objection’ and then ‘conclusion’ for why the premise is true or false. Here is the opening up of both Equity and Justice:

Article 1. Whether "epikeia" [epieikeia] is a virtue?

Objection 1. It seems that "epikeia" is not a virtue. For no virtue does away with another virtue. Yet "epikeia" does away with another virtue, since it sets aside that which is just according to law, and seemingly is opposed to severity. Therefore "epikeia" is not a virtue.[11]

Objection 2. Further, Augustine says (De Vera Relig. xxxi): "With regard to these earthly laws, although men pass judgment on them when they make them, yet, when once they are made and established, the judge must pronounce judgment not on them but according to them." But seemingly "epikeia" pronounces judgment on the law, when it deems that the law should not be observed in some particular case. Therefore "epikeia" is a vice rather than a virtue.

Objection 3. Further, apparently it belongs to "epikeia" to consider the intention of the lawgiver, as the Philosopher states (Ethic. v, 10). But it belongs to the sovereign alone to interpret the intention of the lawgiver, wherefore the Emperor says in the Codex of Laws and Constitutions, under Law is: "It is fitting and lawful that We alone should interpret between equity and law." Therefore the act of "epikeia" is unlawful: and consequently "epikeia" is not a virtue.

On the contrary, The Philosopher (Ethic. v, 10) states it to be a virtue.

I answer that, As stated above (I-II:96:6), when we were treating of laws, since human actions, with which laws are concerned, are composed of contingent singulars and are innumerable in their diversity, it was not possible to lay down rules of law that would apply to every single case. Legislators in framing laws attend to what commonly happens: although if the law be applied to certain cases it will frustrate the equality of justice and be injurious to the common good, which the law has in view. Thus the law requires deposits to be restored, because in the majority of cases this is just. Yet it happens sometimes to be injurious--for instance, if a madman were to put his sword in deposit, and demand its delivery while in a state of madness, or if a man were to seek the return of his deposit in order to fight against his country. On these and like cases it is bad to follow the law, and it is good to set aside the letter of the law and to follow the dictates of justice and the common good. This is the object of "epikeia" which we call equity. Therefore it is evident that "epikeia" is a virtue.

Another fine example is his description and the interplay of Justice on Equity can be seen here :

Article 2. Whether "epikeia" is a part of justice?

Objection 1. It seems that "epikeia" is not a part of justice. For, as stated above (II-II:58:07), justice is twofold, particular and legal. Now "epikeia" is not a part of particular justice, since it extends to all virtues, even as legal justice does. On like manner, neither is it a part of legal justice, since its operation is beside that which is established by law. Therefore it seems that "epikeia" is not a part of justice.

On the contrary, The Philosopher says (Ethic. v, 10) that "epikeia is a kind of justice."

I answer that, As stated above (Article 48), a virtue has three kinds of parts, subjective, integral, and potential. A subjective part is one of which the whole is predicated essentially, and it is less than the whole. This may happen in two ways. For sometimes one thing is predicated of many in one common ratio, as animal of horse and ox: and sometimes one thing is predicated of many according to priority and posteriority, as "being" of substance and accident.

Accordingly, "epikeia" is a part of justice taken in a general sense, for it is a kind of justice, as the Philosopher states (Ethic. v, 10). Wherefore it is evident that "epikeia" is a subjective part of justice; and justice is predicated of it with priority to being predicated of legal justice, since legal justice is subject to the direction of "epikeia." Hence "epikeia" is by way of being a higher rule of human actions.

Aquinas' examples of why Aristotle’s logic and reasoning is sound are detailed with beautiful simplicity, almost as simple as Aristotle himself.

Aquinas was not alone in his admiration of Aristotle whom he called ‘the Philosopher’, he was joined by incredibly bright Islamic scholars such as Ibn Sina (Avicenna, c. 980 – June 1037) and Ibn Rushd[12] (Averroes, 14 April 1126 – 10 December 1198) both regarded as significant physicians, astronomers, thinkers and writers of the Islamic Golden Age[13]. Both wrote on logic, Aristotelian and Islamic philosophy, theology and the Maliki school of Islamic jurisprudence. Strikingly the Waqf[14] in Islamic law, which developed during the 7th–9th centuries, bears a notable resemblance to the trusts in the English trust law. For example, every Waqf was required to have a waqif (settlor), mutawillis (trustee), qadi (judge) and beneficiaries. The trust law developed in England at the time of the Crusades, during the 12th and 13th centuries, was introduced by Crusaders who may have been influenced by the Waqf institutions they came across in the Middle East.

4. Equity in Roman Law

The concept of equity also became attached to Roman law generally, in the form of Ius Commune (common law). The Romans developed the idea of universally valid legal principles, by a process of inference and comparison at the level of court practice. Equity developed in tandem with the notion of a universal law of nations — ius gentium or ius commune. We see how Equity developed together with the concept of ius gentium (law of nations), a common overarching law.

A system of equity also developed (in praetorian law) by the praetors after their acquisition at about 149 b.c. of criminal jurisdiction, providing for their right to allow an action not provided for by law, their right to disallow an action that would strictly lie by the jus civile, and their right to allow an equitable defense where no defense was provided by law.[15]

5. Equity (historically) in Canon Law

In a decretal of Pope Eugenius III[16], we can already see Equity (aequitas in Latin) as a canonical concept that could be substituted for misericordia (mercy) or moderation as being the antithesis to rigorism (legalism) in the interpretation of the canons.

Equitable decision making accepts as the overall goal of adjudication the realization of justice in decision making. The term "aequitas‘ was also applied in late antiquity by Latin Church fathers to describe the Christian ideal of justice. A form of Justice that would include a measure of equality and proportionality, as in the Aristotelian tradition.

6. Current Canon Law

The official English translation of Canon 19 states that:

"Unless it is a penal matter, if an express prescription of universal or particular law or a custom is lacking in some particular matter, the case is to be decided in light of laws passed in similar circumstances, the general principles of law observed with canonical equity, the jurisprudence and practices of the Roman Curia, and the common and constant opinion of learned persons."

Equity pervades Canon Law from the introduction “whereby equity is to be pursued”. In ss3-1, 19 it is described as “law applied with canonical equity, and jurisprudence” in s122 “with due proportion in equity” and invoked a further six times other sections.[17]

7. Equity and the ‘Natural Law’

Natural Law is said to derive from human nature, that is; the natural conditions of existence of humanity, the natural order of the universe, or the Eternal law of God.[18] For Natural law theorists morality is intrinsic to the law and is the source of its binding power or validity. Natural law theory, holds that the positive or human law of a jurisdiction does not exhaust the law of that jurisdiction. Other values or principles such as natural, moral, metaphysical, and theological are also part of the law.

Natural and legal rights are two different types of rights. Legal rights are those bestowed onto a person by a given legal system (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws).

The concept of natural law is closely related to the concept of natural rights and both play an important part of equity, one need look no further than unconscionability. During the Enlightenment, the concept of natural law was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is sometimes used by others to challenge the legitimacy of all such establishments.

8. Hart and Dworkin on Judicial Discretion

H.L.A. Hart in his famous tract ‘The Concept of Law’ presented a certain theory of legal concepts and their application in adjudication. This is just a short summary of Hart's theory. There are certain paradigm or clear cases of legal concepts; adjudication in cases involving such paradigms involves no fresh judgment and is straightforward. Although, in other hard cases that come before the courts the application of legal concepts is unclear and can be a matter of dispute. In such hard cases the court according to Hart, exercises discretion: It chooses itself how to proceed. It performs a quasi-legislative or rule-producing function. It acts creatively, not mechanically. It acts beyond the limits of the formally enacted standards and legal authorities that bind it.'" Hart's account of adjudication in hard cases is complex.[19]

On the other hand law is seen as Integrity represented by Community[20] for Dworkin, and ‘Rights’ play a foundational consideration in determining cases, particularly hard ones, ones in which the written ‘rules’ do not provide direct and ‘easy’ or correct answers.

Dworkin posits ‘law as integrity’ in both legislation and adjudication, and that it holds an inherent political value. He also argues that integrity is valuable in and of itself. He supports this argument (validly, in my view) by implying that it is a deeply held intuition that we will reject legal practices that reject integrity and it is a notion fully mirroring the concept of the ‘common good’ postulated by Aristotle and Aquinas.

In a characteristically striking image, Dworkin remarks that "[d]iscretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction."'[21]

Dworkin postulates that according to positivist analytical jurists, judges in hard cases cannot apply law to reach their decisions but necessarily exercise discretion. He correctly sees since the authority for this exercise of discretion cannot easily be explained in legal terms, the judge as legislator is a highly problematic figure unless seen in Austinian terms as the delegate of a sovereign electorate. Such a judge must, in a democracy, defer always to the democratic will as expressed in legislation. Consequently, judges tendencies will always be to favour the majority will, so expressed. For Dworkin they will lack the authority to protect minorities through the exercise of creative discretion against the majority.[22]

Like many other Natural Law writers Dworkin (correctly) sees a central task of law as to prevent, not aid, the tyranny of the majority.[23] He would be in good company of the Denning and Atkin’s of the world who postulate similar stances.

Dworkin’s ideas on the place of principles in law are unique and plausible;

“it is important to note that once the task of the judge has been defined as to enforce rights and obligations whose present power is independent of the majority will'”.

Judges are for Dworkin (and contrary to the positivists analytical jurists view) in no sense legislators.[24]

Citing an important wills case, where in general the court should guaranteed the estate be disposed of in accordance with the wishes of the testator, yet the court in Riggs v Palmer[25] consciously decided not to apply the rule and did so by relying on a general principle ‘a wrongdoer should not be allowed to profit from his own wrong’[26]. For Dworkin it is not judicial discretion which operates to defeat the ordinary rule as to wills, but “an interpretation of the rule in light of a governing principle".[27]

For Dworkin the judge’s task is undoubtedly creative. Yet it is not legislative. Properly understood, the judicial role is not the dynamic one of making law like a legislator, nor is it the purely passive one of ‘finding law’. The job of the judge is to make the law the best that it can be through creative interpretation of existing legal resources. But according to Dworkin no non-legal materials are to be used in doing this. Thus, as Cotterell says: Dworkin is able to make the claim which has long puzzled many of his critics that, existing law provides an answer for every hard case (although judges and lawyers may argue interminably as to what that answer is).[28]

9. Why won’t Equity suffer a wrong, to be without a remedy?

Because essentially, it is an appeal to conscience. It is the exercise of ‘Discretion’ that Judges have as ‘an inherent right’ being adjudicator. It is an acknowledgment of the necessity for courts to be seen to be doing ‘justice’ not simply pay lip service to it. It is also an important acknowledgement that courts of Justice must look to ‘substance rather than form’ of a controversy in seeking to provide an outcome that accords with ‘Justice’.

It is an acknowledgement that 'principles' expressed as 'maxims' in Equity underpin and guide jurisprudential thinking, and that laws however written, cannot undermine the dignity of the human person, particularly when (one) is seeking relief/remedy for a ‘prima facie’ injustice.

One of the most recent equitable principles in a state of ‘formulation’ is the concept of unjust enrichment. It was debated recently in a paper delivered by the current CJ of the Federal Court:

“Is the principle of unjust enrichment – that a person must make restitution to another when they have been unjustly enriched at the other's expense – a dispositive principle for the resolution of concrete cases, or is it a unifying concept that assists, at a higher level, in the development of the law?”[29]

There are very few Australian cases that have dealt sufficiently with this principle particularly against the State when looking at the question of land acquisition of private property. This is when the State uses [it’s] discretion (via the EPBC Act (Cth)) to cause a taking by regulations that do not [fully] constitute a [compensable] acquisition for the purposes of s 51 (xxxi) of the Constitution[30] (it is another subject I take up in detail in another paper).

10. Conclusion

The maxim ‘equity does not allow a wrong to be without a remedy’ encapsulates the history of the modern day equitable remedies but it is no longer invoked or applicable because of equity’s complete (and unnecessary in my view) reliance on precedent. Within the Australian legal context, equity and equitable remedies were discussed in quite some detail by the High Court in the recent decision of Lenah Game Meats. Only two of six Justices were of the opinion that the State Supreme Courts have unlimited discretion to issue equitable relief.[31] The majority concurred that an “underlying legal or equitable claim” must exist before the court can enliven equity.

I have often written that Justice, or what is ‘just’ can only be understood by deduction[32], i.e. we may only know what is ‘just’ by what is manifestly ‘unjust’. Whilst Justice is a highly subjective term, it is quoted in almost all legal rules and procedures[33] in Australia as the principle which underpins our legal system. Our modern concept of ‘Justice’ was described by Gleeson CJ in Re Minister Ex parte Lam[34] as ‘fairness’ in an attempt to avoid what he called “practical injustice” this, I will posit, is very far removed from the antecedent (Ancient Greek and Roman Law) understanding of what ‘Justice’ is, essentially rooted in the judicial concept of discretion[35].

Equity is the manifestation of this discretion first posited by Aristotle and taken up by the Court of Chancery as an applicable remedy for the rigidity and sometimes harsh applicability of the common law. Equity whilst essentially being a judicial appeal to conscience (was invoked in its first uses, and) is invoked today to assist the (weaker) people, those deprived of all ‘equity’ by the legal title holders (the strong).

All power in any self-respecting liberal democracy [such as Australia] is held in ‘trust’ for the benefit of the common good, this is the Natural Law perspective which guides and expounds legal principles. Our Common Law roots and constitutionally entrenched separation of powers ensures that any contest about the validity of laws or the validity of their application is always subject to the purview and determination of the High Court in its original jurisdiction. This can never be ousted by any legislation [36] and it is a fundamental remnant of the independence of our judges.

The inherent jurisdiction of our Chapter III Courts continue to guide the use and collective wisdom of discretion as a means for dealing with cases that are difficult or their facts do not fit neatly into law that is meant to regulate the controversy at play. It was described with precision as ‘equity’ by the great Aristotle in his discourses in the classics of Rhetoric, Politics and Nicomachean Ethics [37] but it is a concept that is being somewhat undermined by the Parliament and (recent) successive High Court decisions which seem to want to restrict this inherent power as has been observed in Lenah Game Meats [38] and by the Parliament in criminal laws that impose mandatory sentencing on Courts.

The Aristotelian concept of law, law maker and law adjudicator could almost sit as a template over our own Family Court legal structure. The rules are generalist in nature but the decisions are tailored to the facts and circumstances of each particular case that comes before each judge.

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End-notes

[1] Sarah Worthington, Equity (2nd edn. OUP, Oxford 2006) p. 10/11.

[2] Selden, J. Table Talk, quoted in M. B. Evans and R. I. Jack (eds), Sources of English Legal and Constitutional History, Butterworths, Sydney, 1984, 223–224. the most famous criticism being 17th-century jurist John Selden's aphorism “Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure we call a foot, a Chancellor's foot; what an uncertain measure would this be? One Chancellor has a long foot, another a short foot, a third an indifferent foot: 'tis the same thing in a Chancellor's conscience.”

[3] Earl of Oxford's Case (1615) I Ch Rep I, 21 ER 485. This tension climaxed in the Earl of Oxford's case where a judgment of Chief Justice Coke was allegedly obtained by fraud. The Lord Chancellor, Lord Ellesmere, issued a common injunction from the Chancery prohibiting the enforcement of the common law order. The two courts became locked in a stalemate, and the matter was eventually referred to the Attorney-General, Sir Francis Bacon.

[4] Central London Property Trust Ltd v High Trees House Ltd [1947] K.B. 130

[5] Donoghue v Stevenson, 1932 SC (HL) 31 (UKHL 26 May 1932) at [44] “In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

[6] RHETORICA, supra note 6, at 1374a27-28.

[7] Aristotle, See, for instance, 1108 a 6 f. (quoted from "Aristotelis Opera Omnia," edit. Academia Regia Borusica, Berlin, 1831, vol. 1H, page 1108, left hand column (a), line 6); 1130 a 15; 1130 b 5 f.; 8 f.

[8] Aristotle, The Art of Rhetoric, Translated by H.C. Lawson-Tancred, Penguin Books, England, 2004, p65

[9] The Summa Theologiæ (written 1265–1274 and also known as the Summa Theologica or simply the Summa) is the best-known work of Thomas Aquinas (c. 1225–1274). Although unfinished, the Summa is considered one of the classics of the history of philosophy and one of the most influential works of Western literature.

[10] Ross, James F., "Thomas Aquinas, Summa theologiae (ca. 1273), Christian Wisdom Explained Philosophically", in The Classics of Western Philosophy: A Reader's Guide, (eds.) Jorge J. E. Gracia, Gregory M. Reichberg, Bernard N. Schumacher (Oxford: Blackwell Publishing, 2003), p. 165.

[11] Aquinas, Thomas. Summa Theologiæ. Question 120. "Epikeia" or equity, Second and Revised Edition, 1920, translated by Fathers of the English Dominican Province Online Edition Copyright © 2016 by Kevin Knight

[12] Ibn Rushd was born in Córdoba, Al Andalus (present-day Spain), and died at Marrakesh in present-day Morocco.

[13] Bennison, Amira K. (2009). The great caliphs : the golden age of the 'Abbasid Empire. New Haven: Yale University Press. p. 195. Avicenna was a Persian whose father served the Samanids of Khurasan and Transoxania as the administrator of a rural district outside Bukhara.

[14] Monica M. Gaudiosi Influence of the Islamic Law of WAQF on the Development of the Trust In England: The Case of Merton College, 136 U. Pa. L. Rev. 1231 (1988).

Available at: http://scholarship.law.upenn.edu/penn_law_review/vol136/iss4/6

[15] https://www.merriam-webster.com/dictionary/praetorian%20law Accessed 15/9/2017

[16] Pope Eugene III (Latin: Eugenius III; c. 1080 – 8 July 1153), born Bernardo da Pisa, was Pope from 15 February 1145 to his death in 1153. He was the first Cistercian to become Pope. In response to the fall of Edessa to the Muslims in 1144, Eugene proclaimed the Second Crusade.

[17] Catholic Code of Canon Law (1984) Latin - new English translation Codex Iuris Canonici © Copyright 1983 by Libreria Editrice Vaticana. “equity” references: ss 221, 271, 686, 702, 1148, 1752

[18] Thomas Aquinas & Aristotle on the Cosmological argument for the existence of God as a ‘Prime Mover’ in the natural chain of events.

[19] Roger A. Shiner, Aristotle's Theory of Equity, 27 Loy. L.A. L. Rev. 1245 (1994).

Available at: http://digitalcommons.lmu.edu/llr/vol27/iss4/1

[20] Allan, T. R. S. (1988). "Review: Dworkin and Dicey: The Rule of Law as Integrity". Oxford Journal of Legal Studies. 8 (2): 266–277

[21] Dworkin addresses the metaphysical dimension of his theory in ‘Taking Rights Seriously’ supra note 18, chs. 4, 6.

[22] Dworkin Ronald, Philosophy and the Critique of Law in R.P. Wolff (ed) The Rule of Law, New York: Simon and Schuster, 1971, 158, 159

[23] Mill, John Stuart. On Liberty. London: Longman, Roberts & Green, 1869; ch 1

[24] Cotterell, Roger, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition, London: LexisNexis, 2003 p162

[25] Riggs v. Palmer, 115 N.Y. 506 (1889) The will gave small legacies to two of the daughters, Mrs. Preston and Mrs. Riggs, and the bulk of the estate to Elmer Palmer to be cared for by his mother, Susan Palmer, the widow of a dead son of the testator, until he became of legal age. Knowing that he was to be the recipient of his grandfather's large estate, Elmer, fearing that his grandfather might change the will, murdered his grandfather by poisoning him.

[26] The Latin maxim “ex turpi causa non oritur action” From a dishonourable cause an action does not arise. That is; a party cannot bring a legal action for consequences of his own illegal act. In Taking Rights Seriously, Dworkin argues that this case shows that in addition to rules established in statutes, principles are also a component of law. These principles, while not binding in the same manner the rules can be, are sufficient to modify statutes as in Riggs.

[27] Cotterell, Roger, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition, London: LexisNexis, 2003. p163

[28] Cotterell p165

[29] Allsop, James. Chief Justice of the Federal Court, Rules and Values in Law: Greek Philosophy; The Limits of Text; Restitution; and Neuroscience – Anything in Common? 2015

[30] Esposito v Commonwealth of Australia [2013] FCA 546; Esposito v Commonwealth of Australia [2013] FCA 1039; Esposito v Commonwealth of Australia [2014] FCA 1440; Esposito v Commonwealth of Australia (2015) 235 FCR 1; [2015] FCAFC 160; Esposito v Commonwealth of Australia [2016] HCASL 87. See also the Tasmanian Dams Case.

[31] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63. Only Kirby (with Majority) and Callinan (in dissent) say that the Supreme Court’s have an inherent ‘right’ to unbounded discretion, the rest in the majority disagreed with that proposition.

[32] Scevola, Salvatore Bth, Paper on Human Rights Law, Sydney City School of Law 2016

[33] Administrative Appeals Tribunal Act (Cth) 1975 - SECT 2A In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that: (b) is fair, just, economical, informal and quick; Civil Procedure Act (NSW) 2005 - s56 (1) Overriding purpose, “…to facilitate the just, quick and cheap resolution of the real issues…” ; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 3.1 A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.

[34] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 14 [37]: “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”

[35] Aristotle, See, for instance, 1108 a 6 f. (quoted from "Aristotelis Opera Omnia," edit. Academia Regia Borusica, Berlin, 1831, vol. 1H, page 1108, left hand column (a), line 6); 1130 a 15; 1130 b 5 f.; 8 f.

[36] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513-514 [103]-[104] Gaudron, McHugh, Gummow, Kirby and Hayne JJ “pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review.”

[37] Aristotle, Rhetoric, Politics and Nicomachean Ethics, The Classics Penguin Books.

[38] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63