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1. The Equity of the Law: Law and Equity since Justinian

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Chapter Summary

The author intends to show first how the civil law lost the dual structure of classical Roman law and secondly how it came to introduce a ban on an equitable review of the law. By the continuous interaction between 'law' and 'equity', Roman law attained an impressive flexibility, supervised and controlled by the praetor, who developed a complex system of rules meant to, as Papinian has it, 'support, amend and correct' the ius civile. There has never been a 'court of equity' as opposed to a 'court of law' in France, nor anywhere else on the continent. Dissatisfaction with the equitable discretion of the sovereign courts was widespread in France itself as well, as is testified by a famous legal proverb: 'dieu nous préserve de l'équité des Parlements'. It seems that modern Dutch law is witnessing a return to the equitable discretion of the courts of the 'ancien régime'.

Keywords: equity; France; Roman law; sovereign courts



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