Comparative Catalyst Seminar - "Equity and Interpretation"

Until the time of Elizabeth I, any English lawyer would have told you that courts have no authority to interpret statutes. But an English lawyer would also have told you that judges can depart from the requirements of a statute, or extend them, on grounds of equity. These days, any lawyer will tell you that judges must interpret statutes, but have no equitable jurisdiction to depart from their requirements.

I will tell the story of this reversal in polarity in the shared understanding of the relation between legislation and adjudication. The purposes are (1) to show that there is an alternative to understanding all of the reasoning that judges engage in, when they decide what effect to give to legislation, as interpretation, and (2) to vindicate the potential legitimacy of an equitable jurisdiction to dispense from statutes on grounds of equity. Such a jurisdiction ought to be limited in various ways (which I will only illustrate, and not list), and ought to be exercised with circumspection. It can be legitimate to give courts such a limited jurisdiction, and it can even be legitimate for courts to assume it, without anyone conferring it on them, as a way of carrying out their responsibility for the administration of justice. Doing so can be compatible with respect for the rule of law, for the separation of powers, and for the authority of the legislature.