Discouraging the Application of Equity and Common Law - Coursework Example

EQUITY AND COMMON LAW By Location Discouraging the Application of Equity and Common Law Introduction Ideally, common law refers to a legal system in which judges develop laws as a result of court decisions or from tribunals while equity law refers to a set of solutions and affiliated procedures that tend to substitute to the strict laws. In many instances, people tend to confuse the two to have a similar meaning and application because equity laws developed as a result of common laws failing to provide solutions to the disputes that the society met especially in relation to property and trusts. Other than this, the common law can also refer to the law used by countries that abide by the common law, such as England and other nations that do not apply the Roman empire legal systems1. Essentially, the establishment and application of equity law drew influence from the fact that some of the common laws used were too harsh on the subjects and it sought to influence and achieve natural justice or fairness that resulted from the hermeneutics2 concept. Essentially, hermeneutics is a theory that refers to the interpretation of text that originated from interpreting biblical texts. Over time, the legal fraternity has had to borrow into this communication form as Goodrich suggests in attempting to unify both equity and common law applications. Over the years, the legal system has managed to merge the application of common law and equity in the delivery of justice to which some critics are not in favour of. With this, this essay will focus on the emerging argument which is that the integration of the structures of equity and common law should be met with resistance because this is likely to influence judges to be inactive in relation to developing new corrective devices so as to combat new societal challenges. Benefits of applying equity law in solving trust and property issues One of the principle advantages of using equity law is that it tends to correct the errors committed in common law during the delivery of justice in Aristotle supports the fact that the law is not arrogant of the errors in the law3. Aristotle further asserts the correction of the law provides an amicable solution to the problems resulting from the general application of the law. The delivery of justice in this system is the natural form of justice that may in as it does not factor in a person’s wealth or status in the society that they live in making an applicable way of attracting legal fairness. In earlier days, common law used to be rigid in that in which the determination of cases was solely dependant on the chancellors decisions, which was general to most cases4. Other than that, judges also interpret these laws by providing facts concerning these cases and making them understandable to the public. Equity law also provides flexibility in relation to decision making meaning that it can allow for the setting of new precedents in the justice system as this makes these laws to be responsive as compared to parliamentary legislations. However, trust relationships was a major area that influenced problems because of the various categories in which a trust had to entrust their property to the trustee party, which led to the division between equity and common law5. As much as the application of common and equity law tends to attract the delivery of justice with ease, there are also reasons as to why this should not be recommendable. Why using common and equity law should be discouraged Principally, judges have been free to make their own decisions concerning cases, meaning that it is at their own discretion to make deemed fit in the natural way of executing justice. On the contrary, many find themselves applying facts that were useful in prior years, making their judgement to be ineffective. This also influences predictability of the possible outcomes from a case in which many may feel as though justice did not favour them because a judge might have not utilised the facts that were relevant to the case. The implication of this is that the application of common and equity laws in making judgement tends to influence the outcomes of a case negatively because a judge may overlook some evidences. For this reason, the legal fraternity has been vocal in discouraging judges from using case laws to influence their judgement because it is one of the reasons why prisons have become overcrowded because of the delivery of unfair judgement. Moreover, the privileges bestowed upon judges in which they can correct the perceived errors that exist in common law may also influence judges to make changes that are preferable to them and not to the society. The challenge lies in judges separating their personal from their public lives as this tends to create a moral conflict and the authority bestowed upon them by law6. In many cases, judges may make rulings that may not support their personal or moral beliefs meaning that they may be forced to mnake decisions that they mnay not agree with. The application of equity may also influence fair judgement because most of the principles that judges tend to apply may result from the social fabric or mercy that a judge may feel out of considering the circumstances of an accused party 7. The result of this tends to be that a judge may deliver a ruling in order to for them to abide by the moral principles that may be existent in a society rather making use of the facts presented in a case. Ideally, the facts within a case tend to make them unique meaning that the circumstances may also be distinct, hence making it unfair if a judge uses similar cases to be the basis of a judgement. The society has also been vocal in advocating for judges to make conclusive findings in the cases that they deal with instead of relying on the facts of other cases because this has influenced many of them not to conduct adequate information search. Arguably, the challenges that the world faced in the legal fraternity have evolved to involve dynamics that could have been witnessed in the past. In this regard, it is imperative that judges apply up to date facts in the delivery of justice rather than sticking to the old judgements that may not be applicable in today’s world. Further, the laxity by present judges in handling the current challenges in law will also make it challenging for judges in the future because they will lack case laws that they can use as the reference points for cases. In addition, judges may also lack cases that can they can correct to make them more equitable because the judges of the present will not have documented the emerging circumstances that involve the breaking of the law. The other disadvantage that makes the application of these laws to attract people to discourage their use is that they tend to influence the making of bad decisions because judges may have laxity in making changes by applying the precedents already set by others. Essentially, this will make the process of making changes to the precedents in law to be longer while in the meantime influencing the making of bad decisions concerning the cases at hand. Therefore, judges should play an active role in ensuring that they realize the uniqueness that lies in each case and apply mercy by allowing litigants to be in the position of the accused8. The repetition of bad decisions made in the name of the law may have a downward influence in that people will start to lose their trust in the law as an amicable way of solving disputes and opt to make decisions that they may consider legal, which are not. On the contrary, application of these two laws should be discouraged because they are likely to make judges to be impartial and biased, which are not applicable in the justice system. Essentially, justice would be a matter of equality and fairness to all meaning in the same manner that judges in the past used to allow litigants to be in the position of the accused in a case, which implied that the delivery of rulings should base on reason and conscience9. Therefore, the use of conscience should be the primary aspect when making rulings on cases as this can be an effective way justice being fair. The implication of this is that judges should be able to make informed decisions based on the facts of a particular case when deciding the appropriate punishment that befits the crime that a person has committed. The delivery of justice also has to be consistent with the changing dynamics, meaning that applying the old systems of delivering justice because this would make this process to stall in the past. This may influence the justice system to lose its niche as the most appropriate form of delivering justice because the ruling made may not be befitting to the crimes committed. The other complication that the application of case laws may influence is that they tend to create a challenge for judges in terms of which ones are the most appropriate for a case and also in terms of the ways in which they can justify their use and relevance. Ideally, there are so many cases dating to hundreds of years and this makes it complicated for a judge to choose the ones relevant to their case as precedent. Different cases may influence different decisions, meaning that a judge may have several interpretations of the same case laws, meaning that it makes it hard for them to apply the most appropriate one to the case, which is relatively the Ratio decidendi and the Obiter dicta. In this regard, advocates suggest that judges should build their own cases in relation to the cases at hand because this does not require them to go through tons of cases that may confuse their judgement. This allows them to make a fresh ruling on a matter that is unique and is in line with the changes that the society has had to adapt over the years. On the contrary, the application of the common and equity laws will not allow future judges to have case points that can help them in deliberating rulings in cases that may have similar facts. Though not all, cases tend to have relatively similar facts and may also attract a similar result in terms of judgement. This means that if judges rely mostly on the cases of others to make a judgement, then this would translate to others lacking precedence because no one captured the changing dynamics in the law. Therefore, using common law and equity should be highly resisted because it is likely to influence the making of bad decisions in the future. By allowing judges to think beyond case laws, the future of the justice can be one of the most relevant practices because it is likely to make decisions in cases concerning property, contract, and trust to be applied to each case10. Conclusion Over the years, the integration of common and equity in the justice delivery systems appears to have become one of the most notable practices, but this is likely to influence the result of cases in the future. Essentially, the applications of cases as the basis for delivering judgement has influenced judges not to look into the cases that they handle with a keen eye because most of them tend to overlook some facts that have led to the wrongful incarceration of some individuals. Judges should be able to look into all the facts affecting a case without them wanting to influence a certain outcome simply because the cases that they used as precedent gave the same. Subsequently, the use of these laws should also be resisted because it is likely to influence predictability in which the aggrieved parties may feel as though the justice system has failed them. Using this as a basis, it is likely to influence people in a society to lose faith in the justice system because of the repetition of bad decisions that judges may not seek to correct, but use them instead to the detriment of the society. As much as cases tend to help in coming up with an appropriate decision for a particular case, this should not be the only basis for the ruling because they provide confusing insights that may be inappropriate for a case. With this, common and equity law application by judges should be resisted because they provide limited options for the delivery of justice to the society. Bibliography Alexander. Gregory. S. The Transformation of Trust as a Legal category, 1800-1914 (Law and History Review 5 1987). Aristotle Equity in Nicomachean Ethics (University of Chicago Press 2012). Drakopoulou, M. Equity, Conscience and the Art of Judgement as Ius Aequi et Boni (Law, Text and Culture 5/1 2001), 345-375.  Endicott, Timothy, The Conscience of the King: Christopher St. German and Thomas More and the Development of English Equity (University of Toronto Faculty of Law Review 47 1989), pp. 549-570. Goodrich, P. Traditions of Interpretation and the status of the legal text (Legal Studies 6/1 1986), 53-69. Macnair, Mercy. Equity and Conscience (Oxford Journal of Legal Studies 27/4 2007),  659-681. Maitland, FW.A course of Lectures (Cambridge University 2011). Nussbaum,M, Equity and Mercy (Philosophy and Public Affairs 22/2 1993), 83-125. ussbaum, Vinogradoff, P. Reason and Conscience in Sixteenth Century Jurisprudence (Law Quarterly Review, 24 1908), 373-384. Wilson, Sarah, and Paul Todd, Todd & Wilsons textbook on trusts: Texte imprimé. (Oxford University Press 2007). Read More