Book contents
- Equity and Law
- Equity and Law
- Copyright page
- Contents
- Figures
- Table
- Contributors
- Acknowledgements
- Abbreviations
- Table of Cases
- Statutes
- 1 Fusion and Theories of Equity in Common Law Systems
- Part I Legal Systems and Legal Institutions
- Part II Fusion and Fission in Doctrine and Practice
- Part III Functional, Analytical and Theoretical Views
- 13 Wrongful Fusion
- 14 Avoiding Anarchy?
- 15 Equity and the Modern Mind
- 16 An Argument for Limited Fission
- 17 ‘Single Nature’s Double Name’
- Index
13 - Wrongful Fusion
Equity and Tort
from Part III - Functional, Analytical and Theoretical Views
Published online by Cambridge University Press: 26 July 2019
- Equity and Law
- Equity and Law
- Copyright page
- Contents
- Figures
- Table
- Contributors
- Acknowledgements
- Abbreviations
- Table of Cases
- Statutes
- 1 Fusion and Theories of Equity in Common Law Systems
- Part I Legal Systems and Legal Institutions
- Part II Fusion and Fission in Doctrine and Practice
- Part III Functional, Analytical and Theoretical Views
- 13 Wrongful Fusion
- 14 Avoiding Anarchy?
- 15 Equity and the Modern Mind
- 16 An Argument for Limited Fission
- 17 ‘Single Nature’s Double Name’
- Index
Summary
This chapter shows that fusion in the United States, particularly under the influence of Legal Realism, has seen all of tort law become equitable – or all of tort law swallowed up by equity. Each of tort and equity has, under this influence, the potential to swallow up all of private law. The chapter shows, however, the tort law is nevertheless distinct – particularly from equity. Tort law rules are general commands simply understood and relatively simply applied. They are intended to guide the behaviour of all people. Equity, in contrast, mainly consists of second-order rules: rules that presuppose other rules, and control how those other rules work. Fusion is explored by seeing where tort law rules have been injected with second-order (equitable) rules and where equity has produced a doctrine that has become embedded in the law as a set of first-order rules. There is a case for having both first- and second-order rules in the law today.
- Type
- Chapter
- Information
- Equity and LawFusion and Fission, pp. 309 - 330Publisher: Cambridge University PressPrint publication year: 2019