What Conscience Can Do for Equity?
- Senior Common Room at Birmingham Law School
- Arts and Law, Research
- Wednesday 9th November 2011 (12:30-14:00)
Staff Research Seminar: Dr Irit Samet (Lecturer, King’s College, London)
The paper argues that there are good reasons to frame the categories of equitable liability around the concept of conscience. A quick look at recent case law reveals an increasing use of conscience categories to discourage overly selfish behaviour among parties to commercial relationships. The resort to the language of conscience in this context has attracted heavy fire. Two main lines of criticism can be discerned: one discards ‘conscionability’ as an empty category of reference; the other suggests that ‘conscience’ is a thoroughly subjective point of reference, and that as a result it encourages the judges to decide cases on the basis of their own private intuition. I argue that if conscience is interpreted in the right way, these grave concerns can largely be alleviated. The critics assume a very specific, and controversial, model of conscience which presents it as a mere subjective psychological disposition to follow your hunch about right and wrong. On the Kantian objectivist model, in contrast, ‘conscience’ refers to the point of convergence between people’s motivation to do good and their commitment to objective moral norms. On this model, conscience has a strong public aspect as the reasons on which it operates apply to all reasonable human beings at all times. This makes conscience a particularly appropriate point of reference for a legal category that is meant to promote a considerate and less self-centred conduct. In the final part, these arguments are illustrated through liability for receipt of misapplied trust property.
Discussant: Professor Sean Coyle (Birmingham Law School)
- Staff Research Seminars take place at 1pm in the Senior or Junior Common Room, Birmingham Law School
- A sandwich lunch and a glass of wine will be provided from 12:30 pm
- Postgraduate students and academic staff are welcome to attend.