Equity and Common Law - Essay Example

Running Head: Equity and Common Law Equity and Common Law of Introduction Law is as historic as human civilization. It is a set of rules which are enforced by different institutions. It protects and gives shape to a society in many different ways and it serves as a mediator of relations between different people. There are different categories of law. The law which regulates almost everything from trading on derivatives to buying a train ticket is called a contract law. The law which defines certain obligation related to the title and transfer of real or personal property is known as the property law. The branch of law which is applied to different assets which are held for investment is called a trust law, while criminal law is the one which offers ways to a state to prosecute the criminal. The law which provides infrastructure for the creation of other forms of laws is called constitutional law. Administrative law is responsible for reviewing the decisions of different governmental agencies, while the law which covers matters between sovereign countries from trade to military action is known as the international law. Aristotle defines law as supreme set of rules which are far better than the rule of an individual. The legal system of a country differentiates right from responsibility in number of different ways. Religion is also a big factor in informing the law. In my essay I will cover the relationship between the common law and the law of equity. Creation of Common Law and Equity In the language of law the word equity is the name given to legal principles in jurisdictions which are using English legal system. The English legal system is known as the common law. Common law has many different meanings; generally this term is referred to a law which is not formed by the parliament. This law came into existence through traditions and customs of the people. (Clark, 1996, pp.34-35) In the legal system following the common law, the parliament has not to legislate for every event because it needs to look back to the previously decided cases. In contrast the civil legal system follows the law which is the written set of rules codified and there is no consideration given to the judicial model. The term common law may not only be referred to legal precedents but the authority of judges to create law by themselves through the process of legislation and reviewing the previous cases.(Walker, 1998, pp.15-17) The word common law can be used in historical sense. When centralization of ruling power took place in the Middle Ages as a result common law developed. Slowly and gradually it superseded many local laws and was applied to whole of the England. The law which came form the old common courts can also be referred as common law. Common law may also be used to describe another legal system that follows the legal system of England as its foundation. For instance, Canada follows the English legal system with only exception of Quebec, which uses French civil traditions. Finally it can be said that the rule of common law is not the rule of equity which is entirely different law present in the English legal system. Development of the Law of Equity During the period of Middle Ages, it became very clear that system of common law is not capable of handling all sorts of cases and disputes. This caused the common law to rely upon firm system of court orders and writs. (Williams, 2002, pp.24-27) At that time if an action did not fit within the parameters of existing writs then no justice could be given by the courts. This created large gaps in the law. The petitioners who were not satisfied used to go to the King and asked the King to provide them a solution. People had idea in their mind that like King Solomon, their king will deal them with justice. The king gave this authority to Lord Chancellor, and Court of Chancery gradually came into existence to provide equitable remedies to the people. The court used the basic ideas of justice to reach decisions instead of relying on the old written set of principles. Later, these rules become formalized and filled the gap of uncertainty in the society. Finally, these formalized rules evolved into law. (Malleson, 2005, pp.18-21) Therefore the equity can be seen as developed as a result of discrepancies in the common law system. It gives a resolution to gaps which would have allowed corruption and injustice to go unchecked. Without equity there would have no trust of courts among people. The Acts of 1873 – 1975 linked the courts which dealt with equity and common law. This was an administrative convenience issue because it meant that the matters of equity and common law can be used in the path of same action. But on the theoretical sense, these two bodies remain distinct. Whenever a conflict takes place between the two bodies equity will prevail. Law can only be influential if it certain, predictable, fair and flexible. So the equity became a requirement for the common law. Present Relationship between Common law and equity Today in modern practices, the most remarkable distinction between equity and common law is that they both offer different sets of remedies. All the cases are heard in the same court and the argument can either be at equity or in common law. Equity follows the path of the common law and if the common law does not offer just and fair solution then equity can be used. Conclusion In summary equity is required to fill the gaps in the common law. Justice cannot be achieved through common law with out the use of equity. Common law and equity share the same goal in different ways. So it can be stated that equity has no usefulness without the existence of common law. Common law and equity both agrees on their aim of creating a legal system that has the right balance between justice and certainty. Therefore equity and common law must be dependent on each other. Works Cited: Clark, R. 1996, Legal Skills and System Textbook, HLT Publications, London. Walker, R.J. et al. 1998, The English Legal System, Butterworths, London. Williams, G. 2002, Learning the Law, Sweet & Maxwell, London. Malleson, K. 2005, The Legal System, Oxford University Press, Oxford Read More