The Meaning and Significance of Conscience in Private Law

Publication details

Agnew, S. The Meaning and Significance of Conscience in Private Law. The Cambridge Law Journal, 1-27.

Abstract 

Judges often use the language of conscience and unconscionability when deciding cases about the private law rights of individuals. This article seeks to explain the meaning and significance of these ideas.  To this end, it draws on the etymology and ordinary meaning of conscience, and recent work on the distinction between obligations and liabilities in private law.  It 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 (such as e.g., the obligations of a trustee) 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are reluctant to impose primary liabilities which restrict the exercise of legal rights (e.g., where a contract is rescinded on equitable grounds) absent a past or prospective breach of moral duty by the defendant.  The article argues that, 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.