Legal System

EQUITY The concept of equity is universal. It could probably be said that there are three manifestations of equity, namely, 1. Equity may be seen as the just and reasonable interpretation of the law 2. Principles of law are general by nature and it is possible that the application of law to an individual case might result in hardship and injustice. In such cases equity seeks to temper the hardness and rigour of formulated law.

3. Equity may also be used to fulfill the gaps in a legal system. Equity is distinct from all the other sources of law, in that it is not possible to set out in a concrete form the rules of equity. It is an abstract concept or principle behind the law influencing it where the operation of strict legal rules would lead to injustice. Equitable considerations exercise a powerful influence on the development of a legal system especially in its formative periods. But as law becomes more certain and rules are more precisely formulated, there is in fact less room for equity to influence its development. Thus in the modern law equity in this sense cannot be regarded as a direct source of law especially in the common law countries.

EQUITY UNDER THE ENGLISH LAW The peculiar creation of the English courts of Chancery known as English equity must be distinguished from the concept of equity which is universal. When the decisions of the common law courts resulted in injustice the equity of the English Chancery courts became in the course of time a stratified system of law with its legal rules. The equity of English Chancery courts must be distinguished from the concept of equity in general discussed above. The traditional picture of the development of English law begins with the customs of Anglo-Saxon society (before 1066). A custom is said to have its roots in the life of the people and reflect the social structure of that way of life. At the time, the law was local customs, largely unwritten and understood as a set of orally transmitted rules. In 1066, the Norman French baron William defeated Saxon King Herold at the battle of Hastings and conquered England, becoming King William 1. After the Norman conquest, local laws, however slowly, gave way to a general law of the country, which became known as the Common law, the immediate effect of which involved, The introduction of the official languages of continental Europe, namely Latin and the official and popular hybrids known as Norman-French and Anglo-Norman
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Separate Ecclesiastical courts (dealing with religious matters and people in religious service) A general principle of landholding

Over time, the Kings court became the most important forum for the resolution of disputes between citizens. The law of the Kings judges became the common law as distinct from the local customs. The judges however, tried to recognize the general customs, a wise move in terms of getting acceptance of their decisions. Where there was no general custom, the decisions of the judges came to form new law.(as indeed was the case when they adopted customs). The development of the common law was linked to procedure. Therefore an action could not be brought in these courts by obtaining writ. Soon thereafter, the forms of such writs became fixed, and only parliament could approve a new type of writ. If there was no writ to cover your precise problem, unfortunately it was very difficult for the courts to listen to you. (ubi remedium ibi jus).which means, as no right could be recognized in the common law, unless a writ existed that provided a remedy for its breach. This created a legal system and caused considerable hardship to many individual litigants. As a result people began to petition the King (as the fountain of justice) for justice in the individual case. The petitions were dealt with by the Chancellor, who in this period was a man of the church and who was regarded as the conscience of the King. In due course a formal procedure for such petitions evolved, culminating in a court of chancery, presided over by the Lord Chancellor, applying a system of rules known as equity rather than the common law of the ordinary courts.

THE DEVELOPMENT OF EQUITY The Court of Chancery was often called a court of conscience (there was and still there remains a key phrase that a man must come to equity clean hands, that is, not himself guilty of wrongdoing in the case). It is true that it was often effective in remedying injustice, but the existence of parallel jurisdictions brought problems and injustices of its own. Chancery developed procedure separate from those of the common law courts. It also accepted the operation of its own precedents. Procedure again became more important and a litigant had to be sure of the classification of the rules sought to have applied in order to commence his action in the right court. The equity of the Chancery court became a set of rules almost as precise as those of the common law.
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In the case of a conflict between the two systems, the rules of equity prevailed.

There are nevertheless, certain distinctive features. 1. While common law rules are available to Plaintiffs as of right, equitable remedies are discretionary in the sense that they are subject to some general conditions of availability. 2. The existence of parallel systems of rules, the one based on formal procedures, the other based originally on the idea of substantial justice.

Further Reading; Hand out Historical outline of Equity

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