Difference between common law and equity (1 Viewer)

[emi ye]

I have read Prue Vines' textbook but i still don't really understand the difference between common law and equity. Can someone please explain?

Thanks!

 

[theone123]

common law = judge made law by the royal courts or kings court

equity = fairness, created by the chancellors courts

 

[Frigid]

I have read Prue Vines' textbook but i still don't really understand the difference between common law and equity. Can someone please explain?

firstly i will try to define for you the concept of 'common law' and then we'll try to fit equity into the picture.

The 'Common Law' as a Legal System - our legal system is a common law legal system, as distinct from the 'Civil Law' Legal Systems.

The 'Common Law' as distinct from 'Statute Law' - common law is essentially, decisions, which, by the principle of stare decisis, becomes the law. This is in contrast to statute law, which is law made by parliament or other delegated authorities.

The 'Common Law' as distinct from 'Equity' - ok this involves a lot of history so here's a summary:

remember how our common law system comes from the fact that from around 1166 onwards (Henry II's time) iterant justiciars took tours around the English countryside, bringing royal justice in all parts of the land?

At around the same time there began the development of the writ system. A writ is essentially an 'originating procedure' which determines the process of the claim, such as a particular way of pleading, trial or judgment. so now we have the common law system, administered by these travelling justices, accessible to most parts of the land by way of fixed procedures called writs.

however, the writ system was somewhat cumbersome for two reasons. first, if there was a wrong done, but there was no writ for it, then one cannot claim a wrong (hence, without a remedy there is no right). second, because writs were set, new writs continued to be created until about the end of the 15th century.

so the common law courts were at times bogged down by the process and limitations of writs.

Equity

"Equity can be described but not defined. It is the body of law developed by the Court of Chancery in England before 1873. Its justification was that it corrected, supplemented and amended the common law. It softened and modified many of the injustices in common law, and provided remedies."

- Meagher, Gummow, Lehane, 'Equity, Doctrines and Remedies'

so by about the 13th century ppl were not completely happy with the common law system, and raised cries of injustice to the king and his council, asking for his grace to do the right of the complaintant.

at first, the king might take direct action to remedy the situation, but however, by the mid-14th cenutry, these bills had become so common that they were dealt formally by other councillors, such as the Chancellor.

The Chancellor was like the role of a modern-day prime minister. Since most early Chancellors only had a working knowledge of the common law system (they were educated in Canon Law), the extraordinary jurisdiction of the Chancellor was based on principles of honesty, equity and conscience.

Since equity developed over time, and without a strict pattern of development, it is not a complete legal system. it must be stressed that equity was only ever meant to SUPPLEMENT and AMELIORATE the inadequacies of the common law.

by the 15th to 17th century the Chancery, exercising equitable jurisdiction, had been bogged down by its own procedures and rituals, and the greediness of the chancery clerks (who took 'presents' from claimants).

thus equity hardened into a 'branch' of law, governed by rules like the rules of common law. evenutally, the Judicature Acts 1873, 1875 (UK), fused the two jurisdictions, so that both common law and equity would be applied by the same court.

this move was quickly emulated by most Australian states, with the exception of New South Wales, which was the last state to fuse the two jurisdictions by the enactment of the Supreme Court Act 1970.

 

[emi ye]

wow thanks for your explainations! This is prolly a really stupid question but does common law and equity have anything to do with civil and criminal law?

 

[hiphophorray123]

I have read Prue Vines' textbook but i still don't really understand the difference between common law and equity. Can someone please explain?

Thanks!

well since common law is judge made law it's going to be subjective to a degree. Equity is when the judge allows for indiviual differences while persecuting an alleged offender. If my memory serves me wel of course...am i right?

 

[Frigid]

well since common law is judge made law it's going to be subjective to a degree. Equity is when the judge allows for indiviual differences while persecuting an alleged offender.

i think your statements suggest that common law is essentially the same as equity, both being subjective (which of course, neither is). please refrain from making misleading statements.

does common law and equity have anything to do with civil and criminal law?

civil law as in the legal system or private law? civil law, like common law, has a variety of meanings...

try to imagine a flow diagram, like this:

COMMON LAW LEGAL SYSTEM > STATUTE LAW + COMMON LAW DECISIONS > COMMON LAW PRINCIPLES + EQUITABLE PRINCIPLES

STATUTE LAW (AND SOME COMMON LAW DECISIONS) > CRIMINAL LAW etc.

COMMON LAW DECISIONS > CIVIL LAW etc

 

[sugared plum]

i think your statements suggest that common law is essentially the same as equity, both being subjective (which of course, neither is). please refrain from making misleading statements

law is ALWAYS going to be partially/fully subjective. problems with language; value-based 'reasonable man' test leading to subjective test 'reasonable according to individual'; law changing reflect/constitute society.

law does not exist in a vacuum. it changes, interpretations change, application changes. these changes in some ways interact with subjective concepts of justice, equality etc

 

[Frigid]

law is ALWAYS going to be partially/fully subjective. problems with language; value-based 'reasonable man' test leading to subjective test 'reasonable according to individual'; law changing reflect/constitute society.

you're quite right. however, i feel hiphophurray's statements could be very misleading.

 

[sugared plum]

you know what really pisses me off though, is people in class who go, yeah that could be subjective and think they are being so profound.

that comes second to, is this in the exam.

(and lift doors shutting on me)

 

[Newbie]

yeah someone always begins the CP-bonus round with subjectiveness

its sad

 

[Frigid]

you know what really pisses me off though, is people in class who go, yeah that could be subjective and think they are being so profound.

that comes second to, is this in the exam.

(and lift doors shutting on me)

then you bring me back to all the legalism vs judicial creativity argument... blahblahblah.. argue languages is filled with many ambiguities, semantics etc... blahblahblah.

as long as the crap you write is logical and backed-up, it doesn't really matter what you write in law.

newbie: what's the CP-bonus round?

 

[Minai]

People asking questions in class for no other reason than to boost their CP marks and waste everyone elses time.

On the other side of the scale, in my tax tute, only about 5 of us really speak in class, and hence we all will probably get max. CP marks. (lots of internationals, quiet asian girls etc)

 

[Newbie]

lol
internationals and quiet asian girls
thats the easy way to a Distinction average law degree

 

[sugared plum]

i kind of agree with you asqui, but i like when people discuss things beyond what is said in the text. because the discussion is what's so great about the socratic teaching in law classes etc.
but i totally am with you with the hate for people saying stuff because they think it will get them good marks, or people being totally disinterested in things because it's not in the exam. like when they're a solicitor, oh i never understood that, but it wasn't in the exam. sorry can't help you.

the other thing i hate is narrow-minded conservatism. for example, if i use the word 'women', i am branded a feminist-nazi and told to shut up. recently (in the prisoners for condoms case), i used the words, discrimination, homosexuals, anal sex, rape, AIDS, and half the class was shouting at me "you've gone too far".