Cecily Zamora
Common law is a body of law based on court decisions and judicial precedent rather than codes or statutes. It is deeply rooted in the principle of stare decisis, which means that courts and judges need to follow earlier decisions and rulings when dealing with similar cases later. Common law systems are used in many countries today, with approximately one-third of the world's population living in common law jurisdictions.
Equity is a separate body of law that provides legal remedies for cases where common law is inflexible and cannot fairly resolve the disputed legal matter. It is based on the general principles or rules known as maxims of equity, which govern the way equity operates and illustrate its qualities. Equity is a distinct part of the law in England and Wales, and it remains a cornerstone of Australian private law.
| Characteristics | Values |
|---|---|
| Nature of Common Law | A strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. |
| Nature of Equity | A set of legal principles that supplement the strict rules of law and allow courts to use discretion and apply justice in accordance with natural law. |
| Common Law Courts | Bound by precedent or strict legal rules. |
| Equity Courts | Not bound by precedent or strict legal rules, allowing for more discretion in administering justice to a particular case. |
| Common Law Remedies | Available as of right. |
| Equity Remedies | Discretionary and may not be granted if the behaviour of the party seeking the award is not deemed deserving. |
| Maxims of Equity | Serve as a set of general principles or rules that govern the way equity operates, illustrating its qualities as a more flexible and responsive approach compared to common law. |
| Conflict Resolution | In the event of a conflict between common law and equity, equity prevails. |
| Historical Context | Equity became well-established by the 15th century and was seen as a rival system to common law. |
| Geographical Application | Common law and equity have been applied in various jurisdictions, including England, the U.S., California, Florida, Colorado, Pennsylvania, Ohio, New York, New Hampshire, Australia, Hong Kong, Scotland, and India. |
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What You'll Learn
Common law and equity in conflict: equity prevails
The common law is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. Common law relies on the doctrine of precedent when making court judgments. Common law remedies are available as of right.
Equity, on the other hand, is a set of legal principles that supplement the strict rules of law and allow courts to use their discretion and apply justice in accordance with natural law. Equity follows the law but does not control it. The purpose of equity is to support the common law and carry it into practical effect. Equity is administered by courts of equity and remedies in equity are discretionary.
The development of a court of equity as a remedy for the rigid procedure of the common law courts meant that conflict between the two systems was inevitable. Litigants would often seek an equitable injunction prohibiting the enforcement of a common law court order. The penalty for disobeying an equitable injunction and enforcing a common law judgment was imprisonment.
In the Earl of Oxford's case of 1615, a judgment of Chief Justice Sir Edward Coke was allegedly obtained by fraud. The Lord Chancellor, Thomas Egerton, issued a common injunction on the basis of an unconscionable advantage which had developed in favour of Magdalene College, which denied the Earl of Oxford's rights to adequate compensation for loss of title. This case demonstrated how fragile and susceptible equity was to political upheaval during the 17th century.
In the event of a conflict between common law and equity, equity prevails. This was upheld by Attorney-General Sir Francis Bacon, acting on the authority of King James I, who concluded that equity would prevail in the event of any conflict between the two jurisdictions. This was later enshrined in Section 25 of the Judicature Act 1873-1875. In 1972, the Supreme Court Act 1970 (NSW) was amended to empower both the Equity and Common Law Division of the Supreme Court of NSW to grant relief in either equity or common law. This reform also emphasised that where there was a conflict between the common law and equity, equity would always prevail.
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Common law: principle-based reasoning
Common law is a system of law that is based on strict, principle-based reasoning. It uses the circumstances of a case to evaluate and apply the relevant laws. The common law system relies heavily on the doctrine of precedent, where previous court judgments are used as a basis for future decisions. This means that past cases from all jurisdictions within common law jurisdictions can be referenced when making new judgments.
The common law system is distinguished by its reliance on precedent and strict legal rules. In contrast, equity is a set of legal principles that supplement the common law. Equity allows courts to use their discretion and apply justice according to natural law. The principles of equity are flexible and adaptable, taking into account the conduct and worthiness of the parties involved.
The relationship between common law and equity has been described as a rivalry, with equity providing remedies where common law falls short or does not provide any. Equity has been described as a "gloss on the common law", developing new remedies and recognising new rights. The courts have the power to choose between common law and equitable remedies, and in some jurisdictions, it has been established that equity prevails when there is a conflict between the two.
The common law system, with its focus on precedent, provides a stable and predictable framework for legal decisions. On the other hand, equity allows for flexibility and discretion, ensuring that justice can be administered fairly and adaptively.
In conclusion, common law's principle-based reasoning forms the foundation of the legal system in many jurisdictions. However, equity plays a crucial role in supplementing and enhancing the application of these principles, ensuring that justice is served in a dynamic and adaptable manner. The interplay between common law and equity creates a comprehensive and robust legal framework.
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Equity: a discretionary, flexible approach
Common law and the doctrine of equity are two foundational pillars of the English legal system, which have historically served to shape and influence legal systems across the Commonwealth and beyond. While common law forms the backbone of legal precedent, the doctrine of equity acts as a corrective lens, ensuring that rigid rules do not lead to injustice.
Equity represents a body of rules that exist outside of common law, developed by the Court of Chancery to mitigate the inflexibility of strict common law rules. Chancery courts, and later the Court of Equity, had the jurisdiction to apply equitable principles to grant remedies when common law failed to provide a legal remedy or provided an inadequate one. Over time, these equitable principles have become an integral part of the English legal system and are now applied by unified courts that hear cases of both law and equity.
The key characteristic of equity is its discretionary and flexible nature. Equity is discretionary in that it allows courts to shape remedies according to the unique circumstances of each case, filling in the gaps where common law may fall short. This discretion is exercised by judges who consider the facts, the context, and the interests of justice, allowing for a more nuanced approach to decision-making. For example, the doctrine of promissory estoppel in equity allows courts to prevent a party from going back on a promise if it would be unfair to do so, even if there is no formal contract in place.
Equity is also flexible in its ability to adapt to changing social norms and values. While common law relies on precedent, equity can respond to new situations and evolving moral standards, ensuring that the law remains relevant and just. This flexibility is particularly important in addressing novel issues that may not have been contemplated when common law rules were established. For instance, equity has played a crucial role in addressing issues of conscience and fairness in modern disputes involving intellectual property, human rights, and environmental protection.
The discretionary and flexible nature of equity is underpinned by key equitable maxims, such as "equity regards substance over form," "equity acts in personam," and "equity does justice to all parties." These maxims guide judges in exercising their discretion and ensure that equity is applied consistently and fairly. The flexible nature of equity also extends to the remedies it offers, which can be molded to fit the specific circumstances of a case. Equitable remedies include injunctions, specific performance, rectification, and declarations, among others.
In conclusion, equity serves as a vital counterpart to common law, providing a discretionary and flexible approach that ensures justice is served in individual cases. Through its adaptive nature and focus on fairness, equity continues to play a pivotal role in shaping the common law tradition and maintaining a balanced and responsive legal system.
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Common law: reliance on precedent
The most distinguishing feature of common law is its reliance on the doctrine of precedent when making court judgments. This means that judges in common law jurisdictions are guided by the principle of stare decisis, Latin for "to stand by things decided". This principle gives precedence to previous court decisions, ensuring consistency and predictability in the application of the law.
In common law jurisdictions, such as Hong Kong, judges are not restricted to following judicial precedents established only within their jurisdiction. They can refer to case law and precedents from other countries that follow the common law system. For example, Article 84 of Hong Kong's Basic Law allows its courts to consider case precedents from other common law jurisdictions. This exchange of legal knowledge and the application of precedents across borders contribute to a more comprehensive and consistent interpretation of the law.
The reliance on precedent in common law is a key factor that shapes the legal landscape within these jurisdictions. It ensures that similar cases are treated similarly, providing a sense of stability and predictability in the legal system. However, it is important to note that the doctrine of precedent in common law also allows for flexibility and evolution. Judges can distinguish precedents based on the unique facts and circumstances of each case, allowing for nuanced interpretations and adaptations of the law over time.
While common law relies on precedent, it is essential to understand that equity, which supplements common law, operates with more flexibility and discretion. Equity is a set of legal principles that empower courts to apply justice and fairness in accordance with natural law. In jurisdictions following the English common law tradition, equity provides remedies where common law may fall short or be inadequate. This dynamic between common law and equity ensures that the legal system can adapt to unique circumstances and deliver justice in a more comprehensive and equitable manner.
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Equity: a remedy where common law fails
Common law is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. It relies on the doctrine of precedent when making court judgments. The most distinguishing feature of common law is that common law remedies are available as of right.
Equity is a set of legal principles that supplement the strict rules of law and allow courts to use discretion and apply justice in accordance with natural law. It is a more flexible, responsive approach to the needs of the individual, inclined to take into account the parties' conduct and worthiness. The remedies developed by equity are distinct from the common law remedy of damages and are subject to the discretion of the judge.
The major difference between common law and equitable rights lies in the deficiencies of the common law remedy. Equity provides a remedy where common law provides none or provides a more suitable remedy than common law. Equity has been important in supplementing many new remedies to the common law. Some of the most important are those of specific performance, injunction, rescission and rectification.
The courts of Scotland have never recognized a division between the normal common law and equity. The Court of Session (the supreme civil court of Scotland) has exercised an equitable and inherent jurisdiction known as the nobile officium. The nobile officium enables the Court to provide a legal remedy where statute or the common law are silent, and to prevent mistakes in procedure or practice that would lead to injustice.
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Frequently asked questions
Common law is a strict, principle-based reasoning that uses the circumstances of a case to evaluate the laws that are applicable. It relies on the doctrine of precedent when making court judgments.
Equity is a set of legal principles that supplement the strict rules of common law. It allows courts to use discretion and apply justice in accordance with natural law. Equity is flexible and adaptable to achieve justice and fairness.
Common law remedies are available as of right, while remedies in equity are discretionary. Equity provides a remedy where common law does not or provides a more suitable remedy.
Equity supports the common law and carries it into practical effect. In the event of a conflict between the two, equity will prevail.
