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In Pro Swing v Elta Golf Inc the Supreme Court of Canada made passing reference to the functions of equity’s maxims. Other courts have made similar references; indeed, judicial mention of equity’s maxims occurs quite frequently. This is surprising given the dearth of academic commentary on equity’s maxims, and that little mention of the maxims now takes place in Canadian law school curricula. In contrast, open any of the equity texts of the 1800s and significant attention is accorded to equitable maxims. This article seeks to explore whether the concept of equity’s maxims, as against the content of the individual maxims themselves, serves any real purpose today. It starts by providing an historical evolution of the notion of equity’s maxims, noting in particular that they are now largely ignored in the United States of America but still have topicality, to widely varying degrees, in Commonwealth jurisdictions. It then explores three divergent functions that have historically been served by equity’s maxims. Next, it turns to three roles that may be fulfilled by equity’s maxims today. It concludes that equity’s maxims serve a minimal function today. They do, however, preserve the distinctness of equity’s methodology from the common law and do allow some explicit dialogue on morality and ethics in those areas of private law where equity still plays a significant, determinative role.
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The Lautsi decision reflects the deep ambivalence in Western liberal democracies about religion and its relationship to politics. Like the Canadian courts, the European Court of Human Rights (ECtHR) seems to recognize that religion and politics should be separated but that this separation can never be total. While the ECtHR and the Supreme Court of Canada rely at least formally on a similar test for determining a breach of religious freedom (a test that emphasizes the state’s obligation to remain neutral in spiritual matters) their application of the test is guided by different understandings of the public/political significance of religion and more particularly the relationship between religion, civic values, and national identity. The Court in Lautsi seems to accept, or at least acquiesce in, two claims made by the Italian government about the meaning of the crucifix: that it symbolizes the Italian national identity, which is tied to its history as a Christian or Roman Catholic nation, and that it symbolizes the Christian foundation of the civic/secular values of the Italian political community – the values of democracy and tolerance. Behind the claim that the crucifix is not simply a religious symbol but also a symbol of the Italian identity and political culture, is the draw of a thicker or richer form of national identity than that offered by civic nationalism. The assumption is that Italians are held together in a political community not simply by their shared commitment to liberal values or democratic institutions but by a common culture rooted in a religious tradition. Religion and politics are joined at the core of national identity and the root of political obligation. This link between religion and politics, though, rests on the problematic claim that the values of democracy and tolerance emerged directly from Christianity (and are the logical, even necessary, outcome of Christian doctrine) and the disturbing claim that Christianity is uniquely tied to these values. While religion does sometimes intersect with politics in Canada, it no longer plays a role in the definition of the country’s national identity. Canada, sometime ago, embraced multiculturalism as the defining feature of its national identity and liberal-democratic values as its political bond. There is no doubt that Canada’s moral/social culture has been shaped in different ways by the Christian faith of earlier generations, nevertheless any attempt to formally link Canadian national identity to a particular religious tradition would run against the country’s self-conception as a multicultural (multi-faith) society.
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The development of the right to return to one's home of origin -- Modern experiences with post-conflict restitution and return -- Restitution and return "home" -- Local integration and the regularization of collective centre space -- Compensation and regularizing secondary occupation
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