The common law and equity systems of jurisprudence - Essay Example

The common law and equity systems of jurisprudence 2006 Outline: A) The origin of equity legal system B) The common law and equity systems of jurisprudence C) The distinctions between the common law and equity D) Conclusion The origin of the legal system of equity takes root in the English legal system. It developed out of the Chancery Courts of England where Chancellor was addressed to prevent injustices and enforce rights. Equity developed in England as a separate body of law because the common law courts couldn’t provide a remedy for every injury in their adherence to rigid writs and forms of action. So the cases when common law was not adequate were referred to the Court of Chancery established by the king. (Gifis, 1998) Court of Chancery was successful as it avoided the strict provisions of common law. The other contribution of equity law was supplementation of common law with such concepts as injunctive relief, the trust and specific performance. The Chancellor implemented the policy of the Statute of Laborers and made decisions concerning occupational competency like negligent activity of carriers, builders, shepherds, etc. The inability of the common law to address damages due to faulty work resulted in the Chancellor’s competence in the issues of loss of wool, dead lambs, and damaged sheep. (Reilly) The majority of suits reviewed in equity court were disputes over land property involving family members. The case was initiated by the plaintiff who filed a bill of complaint which is a petition to the chancellor or an equity court. The answer followed from the defendant. The plaintiff continued with a replication while the defender answered with a rejoinder. This pleading process might continue further or may be finished a bill filing stage. In the equity court the main evidence was not an oral testimony but a written deposition based on interrogatories. (Wikipedia) The Chancellor performed the roles of both a judge and jury. So he had the right to decide cases without a jury. Unlike the common law, the Chancellor as a judge and often as a religious person relied on circumstances of cases and his conscience but not to a set of rules. Term "equitable claim" contains broad moral sense based upon general equitable considerations rather than a strict meaning of the claim involving consideration of principles of right and justice. (Equity) The equity not only “moderated the rigidity of the common law integrating fairness and moral values into the judicial process” but offered “relief from harsh pleading and procedural rules that operated to deny disputants justice in the common law courts.” (Nolan-Haley, 2004) So early chancery adjudication based on conscience arose out of the problems created by the application of rigid rules of law. The Chancery relieved unconscionable results without challenging the rules themselves. The good example is debt litigation practices. The creditor had a written and sealed bond to evidence the debt while the debtor should get a written acquittance for a paid debt. However, careless debtors could pay twice to unscrupulous creditors who applied common law rule to their advantage. (Godwyne v. Profyt) Сhancellor rejected the priority of the common law relying of conscience and feeling of justice. Such form of justice calling for fairness was called "equity" and courts referred as “Court of Conscience.” So equity has been always associated with sound sense and law of reason or ‘law of God or Nature’. (Hake, 1953) In Hurd v. Hodge 334 U.S. 24 (1948) Mr. Justice FRANKFURTER stated that “equity is rooted in conscience. An injunction is, as it always has been, an extraordinary remedial process, which is granted, not as a matter of right, but in the exercise of a sound judicial discretion. Morrison v. Work, 226 U.S 481, 490.” Early Chancellors judged both criminal and civil cases. Later on Chancery focused on civil disputes. Nowadays the courts of equity do not enforce criminal laws as well. Courts of equity protect civil property rights. By the end 17th century the number of cases viewed by the Chancellor was limited and the role of common lawyers increased. During the English Revolution Chancery was almost abolished by the Parliamentarians. (Meyler) Already in the second part of the 17th century equity became a separate legal system acquiring a set of principles. Nowadays common law and equity complement each other. For example, under modern codes when legal and equitable remedies are blended, the obligor is allowed to adjudicate all claims against him in one action. The failure to do so results in the waiver of his right to object to the defect of parties. (Equity) Although Chancery stood out the attacks, its power diminished giving way to the common law courts and jury trials. The equity was opposed on the fact that the reference to ‘reason’ was unambiguous. Chancellor in equity law making individual decision and relying on common sense can be merciful in certain cases when penalty does not ‘correspond’ to the crime. Coke (1969 in Meyler 2006) disputed the right of the sole person to make the law and one’s ability to have “artificial perfection of reason.” The Chancellor could examine witnesses as well a defendant under oath, and consider circumstances which did not directly refer to the case. The jurors had also investigatory power. Both jury and Chancellor had authority to decide cases on the basis of both fact and law. (Meyler, 2006) The procedural devices which the Chancellor had at his disposal to obtain evidence were interrogatories, examination of the defendant on oath, and subpoena witnesses. The juries obtained the same results from a less formal method of investigation – through informal examination of witnesses or assessing the defendant’s and plaintiff’s reputations in the community. (Meyler, 2006) While in the common law courts the defendant was not required or even allowed to give testimony under oath, in Chancery court the jury members were required to oath as witnesses. The violation of oaths or not returning a true verdict was severely punished. (Green, 1985 in Meyler, 2006) Long ago the civil law authorized the officers to take the examination of witnesses and this practice is still recognized in the English chancery. This is done for the the protection and maintenance of the rights of parties. Nowadays in many countries law and equity coexist in judicial systems. However, the distinctions between two kinds of laws still exist. The first is in the remedies sought. In the common law system it is purely legal while in equity it is equitable and equitable relief is discretionary unlike legal remedies which enforce rights. Unlike legal remedies, equitable remedies may be enforced by contempt. (Nolan-Haley, 2004) Pullock (1898) wrote about equity: “Down to our own time that system preserved the marks of its origin in the peculiar character of the compulsion exercised by courts of equitable jurisdiction. Disobedience to the process and decrees was a direct and special contempt of the kings authority, and a commission of rebellion might issue against a defendant making default in a chancery suit, however widely remote its subject-matter might be from the public affairs of the kingdom.” Сommon law judgment apply remedies limited to money damages or recovery of property. Courts of equity remedies include an injunction forbidding the defendant to do some act, specific performance reformation (rewriting a contact or instrument to conform to the actual intent of the parties), or partition (to divide disputed property). (Equity) Injunction and specific performance as a classic equity remedies were also accompanied by rescission, reformation of contract and imposition of constructive trusts. (Krieger, 1999 in Lederman, 2001) Thus in the courts of law the emphasis is on form while in equity courts – on the merits of the case and the justice of the decision. The elements which distinguish law from equity are pleading practice with cause of action and defenses included and the system of discovery. Equitable defenses were raised in response to equitable claims and include laches (refers to the staleness of claim with a role similar to a statute limitation generally non-existent in equity), equitable recoupment and estoppel. (Lederman, 2001) The distinction of common law and equity is in the rules governing the decision. Equity has been based on a number of maxims while common law regarded set of rules or laws - legal doctrines or statutes. The well-known equity maxims are “equity does not suffer a wrong to go without a remedy; equity regards substance rather than form; equity regards as done that which ought to be done”, etc. (Meyler, 2006) From 17th century the maxims were substituted by the system of precedents similar to common law. Equitable jurisdiction initially conceived as recourse to evade strict rules of the law and considered as not a law at all, with the passage of time turns into an inflexible code of rules similar to law and two systems of justice form to complement each other. English legal historian Professor Baker noticed a paradox in the current state of Chancery courts and equity: "as the equity of the Chancery has hardened into law, so the law has been dissolving into something like abstract equity, with a consequent loss of clarity and certainty." (Nolan-Haley, 2004) The other distinguishing feature of two judicial systems is the unavailability of a jury in equity. In the equity courts the judge is a matter of law who has the right to dispense equitable remedies. In the second half of 17th century the fierce debate was over jurors’ ability to announce the facts and the law. The general practice was that the judge in equity could announce both the facts and the law, the jury could declare only facts. (Meyler, 2006) During the 17th century the jury’s autonomy became more and more protected while the Chancellor’s ultimate authority was contested. The Chancellor’s decisions were oftener and oftener appealed while common law courts’ decisions were insisted not to be revisited in equity. (Meyler, 2006) Macnair writes in The Law of Proof in Early Modern Equity (1999) that in 17th century jury trial was ‘a politically contested issue,’ an aspect of the ‘ancient constitution’ ideology. Though the Chancery survived in the Civil War and Interregnum, other English bill courts were destroyed giving shift towards ‘a subjective standard of proof, to the expansion of the feigned issue procedure’. All in all the combat between the advocates of common law or equity system resulted in the coexistence of the criminal trial jury and creation of a Supreme Court echoing Chancery. References Coke, Edward. The Fourth Part of the Institutes of the Laws of England London: A. Crook et al, 1669. Equity. http://www.angelfire.com/la/LAWGIVER/Equity.html retr. 9 Oct. 2006 Gifis, Steven H. Dictionary of Legal Terms: A Simplified Guide to the Language of Law Hauppauge, N.Y.: Barrons, 1998. Godwyne v. Profyt (after 1393): a petition to the Chancellor. SS.10:48-49 http://vi.uh.edu/pages/bob/elhone/equity.html retr. 9 Oct. 2006 Green, Thomas A. Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 Chicago: University of Chicago Press, 1985. Hake, Sir Edward. Epieikeia: A Dialogue on Equity in Three Parts. D.E.C. Yale Yale Univ. Press, 1953. Hurd v. Hodge 334 U.S. 24 (1948) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=334&page=24 retr. 9 Oct. 2006 Krieger, Marcia Bankruptcy court is a court of the court of equity? What does that mean? 50S.C.L Rev. 275, 281 (1999) Lederman, Leandra Equity and Article I Court: Is the Tax Court’s exercise of equitable powers constitutional? Florida Tax Review 5 n.5 (2001) Macnair, Michael R.T. The Law of Proof in Early Modern Equity. Berlin: Duncker & Humblot, 1999. Meyler, Bernadette A. "Substitute Chancellors: The Role of the Jury in the Contest between Common Law and Equity" Cornell Legal Studies Research Paper No. 06-007 Cornell University - School of Law (2006). Nolan-Haley, Jacqueline M. "The Merger of Law and Mediation: Lessons from Equity Jurisprudence and Roscoe Pound" Cardozo Journal of Dispute Resolution 6 (2004): 57. Pollock, F, and F.W. Maitland, eds. The History of English Law before the Time of Edward I. Vol. 2. Cambridge, 1952. Reilly, S. A. Our Legal Heritage : The First Thousand Years: 600-1600 King Æthelbert - Queen Elizabeth Champaign, Ill. Read More