Equity

Equity grew up alongside, rather than instead of, the common law. Where the common law offered rigid rules and remedies available 'as of right', litigants who felt those rules produced an unfair result could petition the Lord Chancellor, and eventually the Court of Chancery, for a discretionary remedy grounded in conscience. As Sir Terence Etherton MR put it in a lecture to the judiciary, equity developed as a moral and legal basis for avoiding the strict requirements of the common law, with Chancery's intervention being the exception rather than the norm.

The purpose was never to replace the common law but to soften its edges in individual cases where applying the strict rule would be unconscionable. Historically, judicial equity was intended to mitigate the rigour of the strict common law, to be responsive to the particular circumstances of individual cases — which is why equitable remedies such as injunctions, specific performance and rescission remain discretionary rather than available automatically once a wrong is proved.

Modern equity still carries the imprint of its conscience-based origins in doctrines such as clean hands, laches (delay) and undue influence, all of which allow a court to withhold a discretionary remedy from a claimant whose own conduct is tainted, even where a common law right has technically been established.