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Why did Equity develope?

By juancponce Apr 15, 2014 1090 Words

Justice is the `quality of being just; righteousness, equitableness, or moral rightness’.1 The application of rigid rules can result in a judgement, however, not justice. The civil law is based on the principle Dura Lex Sed Lex2; this principle holds that the law is harsh, but is the law. Therefore, a judge can only apply what is written in the law. On the other hand, the common law system is based not only in its statutes and judges’ decisions, but also in the idea of obtaining fairness by Equity. Nevertheless, in order to have equitable resolutions, the common law system had to evolve through a process of learning from its own errors, and adapting to the people’s claims.

This essay briefly starts examining the reasons why Equity developed in the common law, emphasizing the legal and socio-economic aspects that lead to its establishment. In this part, historical events contribute to support the explanation of the development of what converted to be one of the three elements of the law of England, and therefore of Australia.3 Then the essay continues with the description of the manner in which the Equity jurisdiction functioned through the Court of Chancery which, in first instance, seemed to be a rival system of the common law, but that at the end became a supplementary jurisdiction of it.4 At the end, the essay draws conclusions about Equity’s importance in the common law system, underlining its virtues.

In the 14th century, the common people of England were not obtaining justice in an efficient and fair manner.5 The common law courts could not respond in a competent way to the petitions, and, as a result, all the petitions were attended directly by the Crown.6 Because the petitions started to accumulate, the King had to transfer them to his council, who, in turn, and overloaded with work, had to delegate some matters to individual officials, including the Chancellor.7 At the same time, the courts were bound to apply severe rules that were resistant to arguments based on considerations of moral right and conscience.8 The law applied in the common law was repressive and rigid, and was based strictly in the literal words of the rules.9 Moreover, the common law system at that time was vulnerable to corrupt practices since the wealthiest party could intimidate the juries, sheriffs or judges.10 Consequently, in general terms Equity developed because the system of administration of justice that existed in the 14th century did not respond effectively to people’s demands.

The Chancellor’s Jurisdiction started as a `Royal Secretariat’ and its Chancellors were generally archbishops or senior bishops.11 Some of these clergy men had knowledge in canon law because of their church academic background, but also of the common law, considering that they supervised the issue of writs.12 Nonetheless, neither the canon law nor the common law were used to resolve the petitions that were sent to them since they applied their conscience. Therefore, there were no rules or precedents, and as a consequence, every case was resolved with respect to its own particular circumstances.13

Later, by the end of the 14th century, the jurisdiction of the Chancellor developed into its own court, and since then, it is known as the `Court of Chancery’. This court was characterized by the absence of formality in its proceedings, its promptness to decide, and because it was accessible to everyone.14 For instance, there was no jury, evidence was given in an informal manner, and the Chancellor’s role was to inquire into the merits of the case free from the technicality of common law pleadings.15 Furthermore, its jurisdiction was quite extensive, and above all, it became the source of justice for the poor and for the ones who did not receive justice in any other way.16 The process was less likely to be corrupt, and became the quickest and fairness answer to the claims of the ones who were disappointed of justice.17 Thus, the Court of Chancery came to be the simplest, fastest, transparent, accessible, and affordable manner to obtain justice in England in the 14th century.

Equity was the direct response to a slow, bureaucratic, inaccessible and unfair administration of justice in England of the 14th century. It is evident that the structure of the legal system in England at that time had failed, and something had to be done. Though Equity developed as a way to redistribute petitions that were directed to the King, it became the main source of justice for people, principally for the poorest ones. Through the pass of time Equity became one of the three elements that integrate the Law of England, and as said before, of the Law of Australia; but also, it’s indispensable to highlight the importance that Equity has gained considering that in cases of conflict between its rules and the rules of the common law, Equity’s rules prevail.18

Equity revolutionized the English legal system. Civil law countries would wish to have a legal resource that complements the law as the common law countries have, and would support judgments based in conscience rather than strictly adhered to the letter of the law. Equity does not only prevent, correct and reverse individual failures of justice of a rule governed decision-making forum,19 but also, its role in a legal order is to `temper and mitigate the rigour of the law’.20 Additionally, another virtue of Equity that is important to mention, and that was accentuated by Aristotle before it developed in England, is that it `considers the unique individual circumstances which demand a departure from the rigid rules’.21 As well, and the most important fact, is that Equity guarantees a swift, reachable, more transparent, and fair justice for every petitioner. In conclusion, Equity through the Court of Chancery returned the faith in justice to the people, and set the basis for the common law legal system.

1. Books/Dictionaries:
Macquarie Dictionary Publishers Pty Ltd, Australia’s National Dictionary (at 1 Nov 2009) 906.

Newman, Ralph Abraham, Equity and law: a comparative study (Oceana Publications, 1961).

Parkinson, Patrick, The Principles of Equity (Pyrmont, N.S.W.: Thomson Reuters, 2th ed, 2003).

Parkinson, Patrick, Tradition and Change in Australian Law (Pyrmont, N.S.W.: Thomson Reuters, 5th ed, 2013).

Supiot, Alain, Homo Juridicus: On the Anthropological Function of the Law (Verso, 2007).

Williams, Glanville Llewelyn, A.T.H. Smith, Glanville Williams: Learning the Law (Thomson Reuters, 14th ed, 2010).

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