Abstract

This paper seeks to develop a framework for the analysis of ideas of conscience and unconscionability in private law. In short it argues that the language of conscience may play a valuable descriptive role in helping us to understand the moral nature of equitable obligations. Its presence indicates that the obligation being enforced by the court is a moral, as well as a legal, obligation, and that such an obligation will not arise unless the defendant has knowledge of the facts which will allow her to discern and comply with it. In turn, this contributes to the authority of private law to the extent that it bolsters the perception that it has moral legitimacy. However, the use of the language of conscience to indicate moral fault, even in circumstances where the only question is whether the defendant is under a legal liability (rather than a legal obligation) to the claimant, can be confusing. It tends to suggest that the defendant is at fault for breaching some sort of moral duty in circumstances where there is no corresponding legal or equitable obligation. This tends to suggest that sometimes relief responds to a breach of duty by the defendant when in fact this is not the case. It also tends to obscure the difference between duties which are purely moral and those which are both moral and legal. It follows that, if used sparingly, the language of conscience can tell us something valuable about the moral nature of equitable obligations. On the other hand, if used indiscriminately, it can obscure the boundary between morality and law in a way that leads to confusion and legal uncertainty. Ultimately, this confusion can be addressed in one of two ways. The use of the language of conscience can be restricted to cases where the courts are underwriting moral duties as legal or equitable obligations. Alternatively, steps can be taken to distinguish more clearly whether the relationship between the parties is one of legal obligation or liability and whether any duties identified by the language of conscience are moral, legal or both.

The research seminars will be held in S2.12 and will start at 12:30pm with lunch in S2.09 and the seminar will formally start at 1pm.

It was would be great to see as many attendees as possible to show our gratitude to Sinead for taking time out of her busy schedule to present to us.