This article argues that considerations of moral psychology support the traditional stringency of the rule according to which fiduciaries who get involved in a potential conflict of interest shall be stripped of all their gains. The application of the rule, regardless of good faith on the part of the fiduciary, is being contested by courts and academia alike. The article is focused on the ‘deterrence’ justification for the rule, and argues that its unusual strictness should be read as a response (...) to a substantial risk of conscious-silencing self-deception. Given the knowledge gap between them, the principal is very much dependent on the fiduciary's personal integrity but, in the grip of self-deception, the fiduciary's inner checks break down so that manipulative transactions are approved as harmless ones. Two distinctive features of the fiduciary relationship increase the chances that even a professional and virtuous fiduciary will be moved by self-deception to misapprehend the harm which a conflict of interest might cause to the principal: first, the wide discretion in the application of the fiduciary's duty to specific situations; and, second, the power gap between the fiduciary and the principal which enhances the temptation to exploit the fiduciary's position. This risk can only be averted by the more stringent version of the rule, as it is only by preventing the fiduciary from ever considering the legitimacy of a specific conflict of interest that we can hinder the process of reflection which is so prone to being subverted by self-deception. (shrink)

The paper argues that there are good reasons to frame the categories of equitable liability around the concept of conscience. A quick look at recent case law reveals an increasing use of conscience categories to discourage overly selfish behaviour among parties to commercial relationships. Critics discard 'conscionability' as an empty category of reference, or see it as a dangerously subjective point of reference. I want to show that the critics assume a very specific, and controversial, model of conscience in which (...) it is a mere subjective psychological disposition to follow one's hunch about right and wrong. Instead, conscionability should be interpreted in accordance with the Kantian objectivist model, as referring to the point of convergence between people's motivation to do good and their commitment to objective moral norms. On this model, conscience has a strong public aspect as the reasons on which it operates apply to all reasonable human beings at all times. (shrink)

This book sets out to defend the claim that Equity ought to remain a separate body of law; the temptation to iron-out the differences between neighbouring doctrines on the two sides of the Equity/Common Law divide should, in most cases, be resisted. The theoretical part of the book is argues that the characteristics of Equity, namely, appeal to conscience, flexibility, retroactivity and the use of morally-freighted jargon, are essential for the implementation of a legal ideal that has been neglected by (...) the Common Law: 'Accountability Correspondence'. According to this fundamental legal ideal, liability imposed by legal rules should correspond to the pattern of moral duty in the circumstances to which the rules apply. Equity promotes this ideal in the fields of property and obligations by disallowing parties to exploit the rule-like nature of Common Law norms in a way that breaches their moral duty to the other party. By reference to various equitable doctrines, it is argued that the faults identified by critics of Equity, especially from the perspective of the Rule of Law, are highly exaggerated, and that the criticism often reflects a political belief in the supremacy of individualism and free market over empathy and social justice. The theoretical part is followed by three chapters, each dedicated to an in-depth analysis of the equitable doctrines of fiduciary duties, proprietary estoppel, and clean hands. For each doctrine, it is shown how their equitable characteristics are indispensable for achieving their social, ethical and economic purpose. (shrink)

Upon arriving in Auschwitz Primo Levi discovered that rational discourse, in which actions are done for reasons, was left lying on the carriage floor together with his human dignity. By responding ‘Here one doesn't ask why’, the camp guard succinctly conveys the insight that evil defies reason. This paper examines two studies of evil that are predicated on that idea: Kant's and Augustine's. It argues that their theories share an underlying formation wherein evil remains incomprehensible, except in negative terms as (...) an absence of the reasonable. This deep similarity in the structure of the concept of evil is exceptionally striking if we bear in mind the radical difference in the scope of its application: whereas for Augustine ‘evil’ is a general metaphysical concept that concerns everything that goes wrong in creation, for Kant it is limited to agents and what they do. My argument is that the privative structure which underlies their understanding of evil stems from a shared belief in the central role of rationality in ethical discourse, and in an absolute dependence of moral responsibility on free will. (shrink)