Understanding Equity and Common Law

This is a class lecture from the course Principles of Equity, Trust and Roman Law conducted for first year law students at Jahangirnagar University

1. Principles of Equity, Trust & Roman Law Preeti Kana Sikder Lecturer, Department of Law & Justice Jahangirnagar University

2. Part A Understanding Equity The Origin and development of Equity Maxims of Equity

3. Understanding Equity

4. Origin of the word

5. Definitions of Equity Plato : “ Equity is a necessary element supplementary to the imperfect generalization of legal rules .”

6. Definitions of Equity Aristotle : “ The equitable is just and better than one kind of justice- not better than absolute justice, but better than the error that arises from the absoluteness of the statement ; …it is a correction of justice.”

7. Definitions of Equity The Concise Law Dictionary by P.G. Osborn: Equity is defined as primarily fairness or natural justice

8. Origin of Equity Historical Perspectives

9. Major Legal Systems Civil law is a legal system originating in Western Europe, intellectualized within the framework of late Roman law, and whose most prevalent feature is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems whose intellectual framework comes from judge-made decisional law which gives precedential authority to prior court decisions on the principle that it is unfair to treat similar facts differently on different occasions (doctrine of judicial precedent ).

10. Understanding Common Law Background and Development

11. The Road to Common Law

12. Who were the Anglo Saxons? The Anglo-Saxon age in Britain was from around AD 410 to 1066. They were a mix of tribes from Germany, Denmark and the Netherlands . The three biggest were the Angles ( southern Danish) , the Saxons (German-Dutch) and the Jutes ( northern Danish) . The land they settled in was 'Angle-land', or England .

13. Anglo Saxon Law T here was a system of uncentralised Anglo-Saxon law in the entity Besides the Court of the King , witenagamot (meeting of wise men), each county would separately rule in disputes, in their own courts, according to their local customary law, through the Shire and Hundred Courts.

14. Establishment of Feudalism Feudalism was by its nature a hierarchical system of power and social control based on land tenure, and mutual benefit through income and military support passed upwards, and the Kings protection downwards. The English feudal system had the King at the top of the tree with control over the entire Kingdom of England, nobles who sat next in line as tenant-in-chief were wealthy land-owners by decree and plead of allegiance to the King, and below this were various tenants of the land.

15. The emergence of Common Law William I set up the Curia Regis, or King’s Court , to stand side by side with the feudal courts , ecclesiastic and custom law courts . The King would travel within the realm to hear petitions of his subjects. He began to appoint ‘ justiciars ’, or judges, whom were official representatives of the King, knowledgeable about the law.

16. The Emergence of Common Law Over time a split of the curia regis occurred, one part became a permanent body of justices of the Curia Regis, formed to hear the ‘common pleas ’. This Court would no longer travel with the King and would sit in a central location at Westminster. The other part was the ‘Justices in Eyre’, effectively as a sub-branch of the curia regis . These itinerant judges would travel to various regions of the country , known as ‘circuits’, to resolve disputes on behalf of the king and would apply law consistently . the decisions of these courts were recorded

17. The Emergence of Common Law Two other courts, formed from the curia regis , that were important for the basis of the common law being developed were the Court of Exchequer , which was primarily set up of advisors to hear disputes of a financial nature, and secondly the coram rege , or Kings Bench who were kings direct advisors, responsible for business affecting the king

18. The Emergence of Common Law Thus the three common law courts had developed, all empowered by the king, and all operated by professional judges who were knowledgeable in law and able to dispense with the same (common) law across the realm.

19. William Blackstone Common Law is the municipal law of England or the rule of civil conduct prescribed to the inhabitants of the kingdom

20. Ronald Dworkin “A judge working in a common law system is like one author in a chain of authors collectively writing a novel, with each person adding a “chapter” to what came before. The subsequent authors are constrained by what has been written before, but still remain a significant level of freedom .”

21. Senses of Equity

22. Introduction to Equity To ensure the smooth running of society it is necessary to formulate general rules which work well enough in the majority of cases. Sooner or later, cases arise in which, in some unforeseen set of facts, the general rules produce substantial unfairness In this situation, justice requires either an amendment of the rule, or if the rule is not freely changeable, a further rule or body of rules to mitigate the severity of the rules of law

23. Introduction to Equity Equity is such a body of rules or principles which form an appendage to the general rules of law This new body of rules is distinguishable from the general body of law, not because it seeks to achieve a different end, nor because it relates to a different subject-matter, but merely because it appears at a later stage of legal development

24. “An historical accident”

25. Definitions of Equity William Blackstone : “ Equity is the soul and spirit of all law. Positive law is construed and natural law is made by it. (Equity is synonymous with justice )

26. Definitions of Equity Sir Henry Maine: “A fresh body of rules by the side of the original law, founded on distinct principles and claiming to supersede the law by virtue of a superior sanctity inherent in those principles.”

27. Sources consulted http :// www.liquisearch.com/civil_law_legal_system http :// legal-dictionary.thefreedictionary.com/common+law BBC Bitesize : The Norman Conquest http :// www.bbc.co.uk/guides/z3s9j6f History of Common law https ://blogs.harvard.edu/mparrington73/2016/03/16/a-short-history-of-the-common-law / B.M. Gandhi, Equity, Trust and Specific Relief , 4 th Ed, Eastern Book Company, pp 3-18, 2009 R.E Megarrv & PV Baker, Snell’s Principles of Equity, pp 3-14, Sweet & Maxwell Limited, 1960 Simon Askey , Ian McLeod, Studying Law, Palgrave Macmillan, 2011