Equity as a Framework of Law. History of Equity Jurisprudence - Essay Example

? Equity as a Framework of Law Annotated Bibliography Falcony Tella M J, Equity and Law (2nd, Martinus Nijhoff Publishers, Leiden 2008) Equity is a mix of legal theory, legal dogma, justice theory, the philosophy of law, among others. The author uses a methodology that seeks to facilitate agreement focus of values, norms, and facts that have characterized the evolution of the equity concept. The book also covers the relationship between the jurisprudence of equity and equity in the various branches of law, while providing a relevant background for the topic, especially with regards to the history of equity jurisprudence. Eaton J, Handbook of Equity Jurisprudence (1st, West Pub. Co, St. Paul, Minn: 1901) With more than 20,000 practical and analytical works regarding British and American Law in this book. The author includes writings created by such major legal theorists as Roscoe Pound, Sir William Blackstone, and Sir Edward Cooke, making it a rich source of thoughts about equity in the 18th and 19th century in both the United States and the United Kingdom. For this reason, the book will provide an extensive background on initial thoughts about the use of equity law, as well as allow for the tracking of various stages involved in the evolution of equity. Klinck D, Conscience, Equity and the Court of Chancery in Early Modern England (3rd, Ashgate, Farnham, Surrey 2010) Judicial equity developed to provide alternative justice in Medieval England for cases that could not be accommodated by common law. Klinck argues that, while common law faced constraints from strict and precedent substantive and procedural rules, equity was reliant on conscience. He also discusses natural justice as a juristic principle of the Chancery Court, exploring the understanding and use of equity in legal judgments. This book will help to understand the modern concept of systematic equity and in discussing the nature of equity jurisprudence. Atkins S, Equity and trusts (2nd, Routledge, London 2013) Scott Atkins demystifies various concepts of equity law, arguing that equity is a growing, developing, and live concept that has historical underpinnings. This makes it easier to grasp the current application and history of equity alongside modern law sensibilities. The author provides an intensive discussion of equity by placing the law within the wider context of the changes it has gone through throughout history. This book compares equity and modern law, which is relevant to this discussion, especially in considering the various conflicts, which are present. Dixon M, Contemporary Perspectives on Property, Equity, and Trusts Law (1st, Oxford University Press, Oxford 2007) Martin Dixon counters common perceptions about equity as an area of law that is static, continuing the argument presented by Scott Atkins in Equity and Trusts. The author sets out to demonstrate that equity is still vibrant and dynamic with case law and new legislation. Divided into two parts, the second portion of the book sees the author focus on conscience and natural justice with regards to equity and impact of equity law on various regulations in the UK. This book will aid in my discussions on the nature of equity and its conflict with law. Rahmatian A, Introduction: Lord Kames and His Principles of Equity (3rd, Glasgow, University of Glasgow 2011) 42 This book is a work of applied legal philosophy with principled and logical jurisprudential discussion regarding the scenarios of legal conflicts and solutions that equity proposed. The author argues that equity allows for the development of abstract paradigms and mechanisms for legal solutions, which act to inspire real life solutions sans requirement to adhere slavishly to the model. According to the author, equity bridges the gap between the meticulous but exegetic lawyer and the creative but not meticulous philosopher. This will be used to discuss the nature of equity and its role in mediating legal conflicts that require more than just legal interpretation. Ahart A, 'A Stern Reminder That the Bankruptcy Court Is Not a Court of Equity' [2012] A Stern Reminder That the Bankruptcy Court Is Not a Court of Equity 86, 89 According to the author, the Bankruptcy Law Journal of America contends that the bankruptcy court originated from the equity court. However, he argues that the statutes used by the Supreme Court to declare that proceedings of bankruptcy were naturally equitable do not exist anymore. He uses this argument to claim that judges of common law should now function as if they were in a court with powers defined in statutes. In short, he argues that common law should no longer make provisions fro equity, especially the bankruptcy court. This will support my argument that the conflict between equity and law has tipped the balance towards common law. Story J, Commentaries on Equity Jurisprudence: As Administered in England and America, Volume 1 (2nd, C.C. Little and J. Brown, Oxford 1839) 395 Judge Joseph Story contends that equity is “roguish” because law needs a measure that can be trusted, which equity does not offer. He argues that since conscience is according to the Chancery, how narrow or large his conscience is will be the measure of equity as a law. He contends that equity should be used as a subordinate law to common law because judges in both courts use equity and law equally. Written in the 19th century, this source will contribute to argument on the nature of equity alongside common law. Earl of Oxford’s case [1615] 21 ER 485 This was a foundational case that held the principle of equitable law as taking precedence over common law. Following a stalemate between the Chancery Court and Common law court, Attorney General Sir Bacon upheld the common injunction that equity law should prevail in case of a conflict between the two courts. Sir Francis Bacon upheld this injunction by authority of the King, which saw the later enshrinement of equity’s primacy in the Judicature Acts, which were used to fuse the two courts into one court system. This case provides support for the discussion on conflicts between common law and equity. Coke v. Fountain [1676] 36 ER, 984 This case has been highly cited in modern times with regards to the limits and nature of equity. In this case, Lord Chancellor Nottingham contended that equity, rather than being a matter of discretion, was a matter of rule. During the 17th century, a number of chancellors had become heads of the Chancery Court from the bench and, as such, they had brought various ideas from common law. Lord Nottingham sought to strengthen the influence of common law in equity in this case in what was the first serious attempt at fixing equity as a doctrine. Equity as a Framework of Law Introduction Common law can be defined as the body of precedents in law that are compiled through a number of court decisions made in the past, as well as similar tribunals, as opposed to legislative statutes and actions of the executive. These precedents in law refer to the rules used by judges of common law to make decisions in legal disputes. Judges in the common law legal system are responsible for creating and/or refining laws.1 Common law is binding to any future decisions made by the court, although a court’s decisions can only bind future decisions in that specific jurisdiction. Equity refers to legal principles that follow in the traditions of English common Law in every jurisdiction and supplement potentially harsh application of strict rules of law,2 to achieve natural justice. This paper will seek to elaborate on the creation of the equity system and the reasoning behind it, as well as the nature of equity and its conflict with common law. Emergence of Equity as a System of Law Early English equity jurisprudence history shows a clear distinction from law. This distinction, however, has become blurred with time. Equity refers, generally, to correction of errors or defects present in the law. The concept of equity has apparent roots to Aristotle’s concept of equity as an exception to the rule, in which the pronouncement made by the lawgiver was erroneous and defective.3 A law could be deemed erroneous or defective for various reasons, including the need to avoid the possibility of administering injustice when deciding “hard cases”. In addition, laws could be defective because legislators failed to foresee a particular situation or if a judge was not willing to grant relief in a particular case. One of the first situations that led to the emergence of equitable exception to laws was universality, which refers to a law that is too broadly stated during legislation. It was presumed that if legislators had debated the matter, they would have exempted the case from the general rule, through applying the law of equity. In this case, inaccurate crafting of words is the real defect in the drafting of legislation, which means that the statute is not a true reflection of the law. Because laws cannot express or foresee all cases, it became necessary that, during the application of general law decrees in specific cases, some powers were vested on the judge to exempt circumstances that legislators would have exempted if they had the chance.4 Another situation that contributed to the emergence of equity, involved cases in which common law judges for some reason refused to grant a complainant’s plea for relief. This could result from either inability by a court of common law to enforce a right or the court’s failure to recognize the right.5 Therefore, the equity system of law, acted as a way of supplying deficiencies using pure legal remedies for any cause. Finally, the third contributing factor for the emergence of equity involved “hard cases”. These are cases in which applying the rule strictly, while possible and clear, would have sentenced the individual to hardship. A law that allows for such a harsh punishment is considered as being contrary to justice. There will be cases where it becomes necessary to leave the law and what it states and do that which is required by justice and conscience. Equity, when used in this case, was meant to temper a law that was too rigorous and to mitigate it.6 Applying laws too harshly without tempering through equity had the potential to allow administration of great injustice and undue hardship. History of Equity Jurisprudence Most research texts note that equity jurisprudence and equitable rules have no underlying principles that link them logically together. Instead, equity jurisprudence is defined as justice that the Court of Chancery in England historically administered. English common law jurisprudence had developed common law courts, such as the Exchequer, the Common Pleas Court, and the King’s Bench, which, despite having diverse jurisdictions, were called common law courts. However, common law did not adopt equity from Roman law,7 meaning that common law courts did not use equity jurisprudence. The King’s Secretary, also referred to as the Chancellor, issued complainants wishing to bring legal action before the courts of common law with legal writs from the early 14th century. In cases where no legal writs were available, the Chancellor took it upon himself as the King’s agent to resolve them. Special writs for the Chancellor’s office to handle these cases were referred to as the Chancellor’s extraordinary jurisdiction.8 However, this also led to a battle for supremacy between the Chancery and courts of common law. The Chancellor, during this period, asserted his power to prevent winning litigants from enforcing the common law court’s judgment,9 which meant that those who lost could prevent a judgment from being enforced by suing in equity. While the Chancery did not void the judgments, he could contend that enforcing the judgment was not equitable because of one of the parties’ personal reasons. For common law judges, extraordinary jurisdiction was a threat to the rule of law with equitable law being akin to contempt of court. However, the struggle for supremacy was finally decided in the early 17th century after the King upheld the Chancellor’s power following an attempt by Chief Justice Coke to stop a losing claimant from preventing enforcement of judgment through equitable relief.10 Equity as Jurisprudence As discussed, equitable justice involves exceptional situations and discretionary judgment, arising from the Office of the Chancellor. One of the most distinctive natures of equity is that it is a jurisprudence of discretion. Its basis is doing justice by administering discretion or grace, which, rather than executing law in a strict sense, allows the judge to disregard the law in doing what he/she thinks is fair.11 Therefore, equity can be considered as a matter of freeing the judge from common law for them to use their personal moral conscience. Moral conscience is another nature of equity as seen by the basis of its discretionary and extraordinary jurisdiction on the Chancellor’s role to speak for natural justice and conscience.12 The chancellor in this case was the keeper of the King’s conscience and, fundamentally, equity was based on the court’s power to carry out what was required by natural justice and reason. Equity is also not bound by law as judges have the discretion not to follow the law if they feel it would be inequitable. Therefore, since equity has supremacy over common law in substance and jurisdiction, the extent to which equity adheres to common law is at the discretion of the judge.13 Common law courts in England are of a primarily judicial nature and function, which means that they are limited to non-discretionary legal judgments. The Chancery was, however, an office that had executive functions, asserting the office’s power through stay of execution with regards to judgments by the common law courts. In addition, equity is formalized over time. Rules of equity in various areas of equity jurisprudence are formalized after they have been used for some time, although the formalized rules are still part of exceptions to the common law.14 Finally, the nature of equity is such that it is individualized on a case-by-case basis.15 Disregarding formalization of various areas of equity, one of its hallmarks is its analytical method that takes on cases individually. Equity’s individualized characteristic nature is such that the Chancery conducts a circumstances and facts analysis in the absence of formal rules, in which each case is taken as exceptional. It is important to note also that equity is not law, but rather a reaction to the demand for discretionary exceptions.16 Therefore, unlike common rules of law, equitable rules were neither universal nor permanent, and they were not uniform either. Equitable law has always been taken as distinct from common law in the past, and the same is true today. Conflict between Equity and Common Law This particular examination of equity has been prompted by specific logical conflicts that arise because of the nature of equity as discussed and the nature of common law. The first conflict has to do with justice. The nature of common law holds that justice means; the execution and carrying out of the law.17 On the other hand, equity sees this carrying out of law as being contrary to the administration of justice. Another conflict could arise with regards to discretion with the nature of law holding that judges exercise their judgment, rather than their will, while equity permits judges to decide a case based on their personal discretion. Finally, common law and equity conflict on the concept of uniformity with the nature of law requires uniform application of justice with any action to the contrary indicating partiality.18 Equity, however, makes an allowance for special cases and exceptions, in which judges can override an application of the accepted general rule. However, despite these conflicts, equitable methodology, which refers to making decisions based on the exceptional justice, individualized, and discretionary concepts, circumstances and facts test is one equitable methodology pervading modern jurisprudence.19 This necessitates that all cases are taken as demanding extraordinary discretion and justice, as well as being exceptional and not capable of formulating rules. Consequently, only judges can make decisions on these matters on a case-by-case basis. Another methodology of equity that pervades modern jurisprudence is the balancing of interests. This is based on balancing of equity meant to avoid the “zero sum game” that results from application of common law rules. Therefore, seeking to balance interests was meant to create remedies for each of the parties’ needs and can be considered as a different form of analyzing circumstances and facts as discussed.20 Conclusion The discussion above leads one to make various conclusions. Equity exists in the form of judicial equity and executive equity. Executive equity is exercised through the power to pardon and extend stays of execution when the actions are within the powers of discretion exercised by the executive officers, such as officers in the Chancery, judicial equity is appropriate in some cases and not in others. The appropriateness of judicial equity depends on whether the judge considers that a law does not account for some aspects of natural justice for whatever reason. Out of necessity, there must be an exception made by the judge or Chancery officer to take properly the applicability of natural justice into account. Law as a universal, uniform, and permanent rule of action mitigates against jurisprudence that has been generalized and founded on exceptional circumstances, as well as personalized justice on a case-by-case basis. Bibliography Ahart A, 'A Stern Reminder That the Bankruptcy Court Is Not a Court of Equity' [2012] A Stern Reminder That the Bankruptcy Court Is Not a Court of Equity 86, 89 Atkins S, Equity and trusts (2nd, Routledge, London 2013) Dixon M, Contemporary Perspectives on Property, Equity, and Trusts Law (1st, Oxford University Press, Oxford 2007) Earl of Oxford’s case [1615] 21 ER 485 Eaton J, Handbook of Equity Jurisprudence (1st, West Pub. Co, St. Paul, Minn: 1901) 45 Falcony Tella M J, Equity and law (2nd, Martinus Nijhoff Publishers, Leiden 2008) Klinck D, Conscience, Equity and the Court of Chancery in Early Modern England (3rd, Ashgate, Farnham, Surrey 2010) Luciana B, Octavia S, Varvara C, 'Equity, Fundamental Principle of Law ' [2012] Contemporary Readings in Law and Social Justice 462, 464 Rahmatian A, Introduction: Lord Kames and His Principles of Equity (3rd, Glasgow, University of Glasgow 2011) 42 Story J, Commentaries on Equity Jurisprudence: As Administered in England and America, Volume 1 (2nd, C.C. Little and J. Brown, Oxford 1839) 395 Read More