Equity and good conscience: the judge as moral arbiter and the regulation of modern commerce

Justice Maxwell began the Oration with a quote from Jiminy Cricket, ‘Let your conscience be your guide’. From here he investigated the concept of unconscionable conduct – how it is understood in law and what its implications are for judges, lawyers and the business world. His aim is to highlight the implications of our continued use of this powerful but elusive concept of good conscience.

‘The shocking reports we have all read about large-scale and widespread unethical behaviour in the financial services industry would tend to suggest that not very much moral reasoning has been going on there. The dictates of good conscience do not appear to have held much sway when decisions have been made by service providers about what sorts of transactions to embark on, which sorts of customers to engage with or what marketing and selling techniques are to be adopted.’

‘Is that a failing in the law, either as enacted or as applied? Even if it is not, could the law — meaning, in particular, judges and practitioners — do more?’