Common Law vs. Equity: Understanding English Legal System
The Influence of Judges in English Law
Historically, it has been the judges who have exercised greater influence in the creation and systematization of English law. They were the same people who formulated the decisions they made when passing sentence, in what is known as common law. This law, also called “judicial law” or “judge-made law”, is still in force and, on many issues, is more influential than statutory law, despite the great legislative powers of Parliament. For example, a large part of the law of commercial contracts is based on common law rules.
Common Law vs. Continental Law
Common law is completely different from continental law, of Roman-Germanic root, where both the substantive law (the rights and obligations) and the adjective law (the procedural rules or procedural law) are included in basic and indispensable codifications. English law is “judge-made” when the basic thing is precedent: the decisions previously established for similar cases, which are binding. These differences lie in the various origins of each.
The Origins of Common Law
When in England, in the twelfth century, the foundations of the English legal system were established, the rest of Europe had no such thing and would have to wait another century. English law was not based on the sources of Roman law or canon law like the rest of the continent.
The Development of Common Law
Common law emerged and developed in the late Middle Ages; changes were produced by the market economy as the urban was born versus the agricultural autarky of the previous period. The justice dispensed by the common law was abandoned as modern because of the use of ordeals, or trials by God, and introduced the jury, a democratic institution, for it allowed people without legal training to have, and still have, a share in the administration of justice.
The Role of Equity
The common law has been shaped by the work of generations of judges. The courts of this right (common law courts) resolved disputes between citizens regarding property, personal injuries, and breach of contracts, based on precedent, applying legal remedies, such as “compensation for damages”. When one of the litigants disagreed with the judges’ decision, they could appeal to the king on appeal or under, who left advising the Lord Chancellor, the maximum ecclesiastical authority. Later, these requests were raised directly to the Lord Chancellor, who administered justice freely based on principles of conscience, fairness, and justice (equity and fairness) rather than by the rigid rules of law. This justice dispensed by the King or the Lord Chancellor was called equity, and is the second historical source of English law.
The Court of Chancery and the Development of Equity
Until the nineteenth century, there were two types of courts in England: common law courts and courts of equity. The existence of two parallel systems of justice led to conflicts over which of them had precedence over the other. King James I decided that equity should prevail forever, and thereafter the court of the Lord Chancellor, called The Court of Chancery, began to develop a body of doctrine and jurisprudence that still remains alive in the wake of jurisprudence and modern English law, on ownership, wills, intestacies, intestate successions, and trusts. Equity, which eventually was organized and set up its own “remedies” (equitable remedies), such as the injunction, the order of “specific performance” or strict adherence to the terms of the agreed contract, etc., is not a proper legal system. It is guided by maxims such as: equity aids the vigilant, not the indolent; equity looks to the intent rather than to the form; equity suffers not a right without a remedy; delay defeats equity; and he who comes into equity must come with clean hands.
The Modern Administration of Law and Equity
The High Court of Justice administers both the common law and equity. The Court of Chancery was abolished because the delay of its resolutions had become unbearable, and many of its powers were transferred to The Chancery Division of The High Court of Justice. At present, the ordinary courts (courts of law) administer both law and equity. Fairness, as a source of English law, is now a framework of legal principles whose creativity is still in force, as illustrated by the so-called Mareva Injunction and Anton Piller Order. Many of the requests, such as action for an account (demand accountability), are based on equity, and in them, the applicant receives the generic name of complainant or petitioner, instead of plaintiff, and the defendant is called respondent, instead of defendant.