Equity fetishism : an analysis and theory of civil justice in modernity

Herian, Robert (2018) Equity fetishism : an analysis and theory of civil justice in modernity. Doctoral thesis, Birkbeck, University of London.

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Abstract

This thesis argues that the law of Equity is a means to complete justice for stakeholders of capitalism with a desire for and need to believe in the certainty and perfectibility of the symbolic of capitalist reason and logic. By applying a Marxist Freudian reading I claim that stakeholder desire for and insistence on certainty and perfectibility within contexts of Anglo-American, Western, capitalist civil justice is both characteristic of subjugation to the reason and logic of capital, and symptomatic of the power of the unconscious and of fantasy on subjectivity within capitalism. Starting with an account of the Tudor jurist, statesman and Lord Chancellor Thomas More in the sixteenth-century, this thesis explores the long durée of Equity and civil justice, including analyses of the role a neurotic legal community has in defining conscience, discretion and flexibility within the principles, substance and procedures of civil justice upon which the stakeholder relies. Equity, therefore, provides a means for stakeholder’s to express their desire for what is missing, what they lack, in the symbolic, and the response to this desire is, I claim, the construction of an elaborate fantasy: Equity fetishism. As a theory of civil justice predicated on a conjunction of law, political economy and psychology, Equity fetishism explains Equity, as a body of jurisprudence, form of private law reasoning, and mode of adjudication, within domains of capitalist civil justice as being determined by fantasy and desire as it is defined by the normative discourses and processes of case-law, legislation and civil justice reform. As a structure in fantasy within civil justice Equity fetishism works in and through institutions such as private property and trusts in order to maintain stakeholder belief in the limitless possibilities of capital accumulation, which in turn maintains stakeholder disavowal of the realities of castration, subjective longing, loss, and limitation in the symbolic. Finally, this thesis aims to demonstrate that Equity fetishism is a vital consideration for critical and mainstream legal scholarship, as both a complementary and countervailing legal theory and discourse that is able to contribute to practical and theoretical legal thinking and education. Specifically, I argue, Equity fetishism accounts for and explains the influence of the vagaries of subjective psychic life on the development of institutions, concepts and practices in Equity and civil justice and, in particular, how these parallel and occur in harmony and agreement with capitalism.

Item Type: Thesis (Doctoral)
Copyright Holders: The copyright of this thesis rests with the author, who asserts his/her right to be known as such according to the Copyright Designs and Patents Act 1988. No dealing with the thesis contrary to the copyright or moral rights of the author is permitted.
School/Department: School of Law
Depositing User: ORBIT Editor
Date Deposited: 20 Dec 2018 13:01
Last Modified: 20 Dec 2018 13:01
URI: http://bbktheses.da.ulcc.ac.uk/id/eprint/359

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