Agnew, Sinéad
(2015)
What we talk about when we talk about conscience: the meaning and function of conscience in commercial law doctrine.
PhD thesis, London School of Economics and Political Science.
Abstract
This thesis seeks to explain the meaning and function of conscience in commercial law doctrine. It argues that the idea of conscience in law bears its ordinary meaning. When the courts use the language of conscience, they are simply expressing a moral judgement about whether, e.g. the defendant’s behaviour or a particular state of affairs conforms to the commonly held standards of right and wrong to which we all have access and of which we are all expected to be aware. The thesis argues further that the language of conscience has a discernible but very limited function in commercial law doctrine. It helps us to understand that in recognising and enforcing obligations, equity is giving effect to moral obligations, and that it will not do so unless the individual on whom the obligation is to be imposed has knowledge of the relevant facts. However, beyond this, the language of conscience has little, if any, explanatory force. For example, it tells us nothing about the moral principles underpinning particular doctrines, nor does it tell us what or how much an individual must know before it will be reasonable to treat her as subject to an obligation. In fact, the courts’ tendency to invoke the language of conscience and unconscionability without regard to the limits of its explanatory power means that a number of important doctrinal questions remain perpetually unanswered and sometimes obscured. Therefore, the thesis concludes that the courts should not continue to use the language of conscience without paying much greater attention to what it can and cannot explain.
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