The Meaning and Significance of Conscience in Private Law

Abstract

This article argues that the idea of conscience can play a useful, albeit limited and highly general, explanatory role in private law, if we have regard to two distinctive contexts in which it is used. First, it tells us something about how equitable obligations arise and reminds us that they directly enforce moral duties. Second, it conveys the message that the courts are reluctant to impose primary liabilities which restrict the exercise of legal rights absent a past or prospective breach of moral duty by the defendant. Without further explanation, the indiscriminate invocation of conscience in both contexts can lead to confusion and uncertainty, but if the distinction between obligation and liability is observed, the explanatory force of conscience in relation to each becomes clearer, and it plays a valuable role in bolstering the authority of private law.

On Trusts, Hypocrisy and Conscience

“…As Sinéad Agnew shows, the ultimate duty of express trusteesto account for the propertyis rooted in conscience, today as in the early days of the trust. 60 The move away from a privitybased commitment towards a mixed proprietary/personal obligation did not change this essential connection between conscience and the trustee's duty. 61 The more recent Supreme Court decision in Akers and Others v Samba Financial Group 62 further demonstrates this point.…”

“…As Agnew explains, the language of conscience "cannot help us to identify the principles or values which underpin an equitable obligation : : : [nor] give detailed content to the relevant obligation". 72 In that sense, it is empty of substantive content. But that does not mean that it is bereft of explanatory power.…”

The Contradictions of Conscience: Unravelling the Structure of Obligation in Equity

“…8 Similarly, a shared understanding of beneficial rights in the family home can be enforceable by a trust once the relevant parties have relied upon the common belief. 9 2 Alternatively, see Sinead Agnew's (2018) analysis of the explanatory base that conscience provides to modern doctrine. Additionally, see Pawlowski (2018 Youdan (1984); Hopkins (2006); Rochefoucauld v Boustead [1897] 1 Ch 196.…”

“…In recent years, there has been a growing academic debate on how to interpret the significance of conscience for modern equity (e.g. Halliwell 1997;Hopkins 2006;Macnair 2007;Samet 2012;Hudson 2016;Pawlowski 2018;Agnew 2018). I suggest there are two poles between which the conceptual looseness of conscience can be framed.…”