Common Law and Equity
User Rating: 0 / 5
- Details
- Hits: 32196
The author is associated with orderwriters.com which is a global custom writing company. If you would like help in custom writing or term paper writing and essays, you can visit orderwriters.com.
Introduction
Equity is a sense of balance in its broadness addressing concerns falling outside the standard law. Common law is an area in law that is somewhat confusing since it is commonly defined by situation. When the application of common law does not bring out a comprehensive ruling, then equity is used to supplement the common law where the common law does not highlight fairness. The use of equity as a supplement to common law can be seen as a glue, which gloss up the bridges within the common law, as there is no equity within the common law.
Equity and Common Law
Equity first arose from under the common law since common law had inadequacies. Its application to common law can be seen as making common law fairer in the delivery of judgments. This is because, in the past common law was too rigid in its procedures as justice was not delivered to those petitioners whose grievances was justified to fall outside the prerogative of the common law or those who were battling claims against the most influential and the powerful. The discretionary nature of equity and its equitable remedies makes it retain its characteristics even where its governing precepts are settled.
Application of equity equates to the balancing of provision of a remedy (as of the common law) is appropriate. In common law, the damages are expressed solely in monetary terms and provided as a compensation and winning a case in it is more of winning a remedy. Since equity common use is as a supplementary law, and according to George (2012), it is important to know that it is not completely a system of law. Equity only assumes the role of law where common law is maladapted in the hearing or if it considered harsh on either the petitioner or the accused.
Equity cannot be applied single-handedly, due to its supplementary nature, it is important to note that it cannot govern where there is the absence of the common law. In Pinder and Dresner (2007) on the other hand, in the absence of equity, the common law even as much as it can be successful, will less fairly limped all rights. These systems however need not be viewed as rivals since they rarely fall on active conflicts. In the rare occurrences however where the common law and equity conflicted, equity prevailed in the judgment course.
Distinctions between equity and common law have since been drawn because of the evolution of equity historically. Even if equity is a vital part of law, it is necessary to make the law characteristic a complete system even if equity is accorded a special role in hard cases, where the law was never entirely applicable. Some people would argue that against judicial discretion, equity has weighty principles that are essential in helping judges deliver just hearings.
If the event equity and common law is not in dispute, they are likely to be viewed to be similar that the retention of the distinction between them may not be seen to be useful thus bringing a thought of jurisdictional fusion. Equity and common law however still developing substantive laws and mixing them may bring fusion fallacy. Equity has in general allowed equity to influence the common law productively, making the common law flexible even as equity coagulates and sets. According to Skeptical (2007), when considering the relationship between equitable compensation and common law damages, for example, there is emergence of strong similarities between them making it difficult to draw meaningful distinctions between the two.
Constitution of Equity to Common Law
Some jurists have been pressing for the fusion of the common law and equity arguing that there is minimal distinction between the two. The remedies available in both jurisdictions are now, as choices to be picked from at will. Common law however has grown, and many will argue that its precepts were not deliberately made and cannot be linked to any super-entity or design. Most judges in common law countries are never bound to the reasoning of the members of the bench even if they are aware of such reasoning but of pure end-independent rules to apply the law to the facts in instant cases and not to slavishly follow precedent to avoid misguidance.
Fusion of common law and equity may prove complex in situations of legislative fusion large-scale abrogation may bring forth disastrous consequences. Equity would get to distort common law in the event where it is legislatively blended with the common law making the legislation cumbrous to deliver. It is never guaranteed that fusion would make the law fairer as equity is commonly applied at a stroke, though the constitution of equity in common law has the ability to produce fusion at some point due to its presumption into the civil obligations category.
Rapid social change brings expectations that often clash with the legal certainty and consistency, provided by the common law. Due to rapid social changes, common law is frequently undermined by repeated past injustices reducing its effectiveness and confidence as an instrument for social order. Equity thus emerges to the common interest of the law that address as many different contingencies as possible. The desire for a perfect justice has fed the constant misinterpretations and misunderstandings in common law jurisdictions as it is easily threatened repeatedly for its failure. Equity in the past has been concerned with historical injustices thus; its application would stipple confidence to the public in the laws.
References
George, M. (2014).Houston Federal Trademark Infringement Defense Attorney. Retrieved from http://www.georgemurphylawyer.com/practice-areas/trademark-infringement
Skeptical, L. (2007).Equity as Spontaneous Order: Evolution of Glosses on the Common Law. Retrieved from http://skepticlawyer.com.au/2007/07/10/equity-as-spontaneous-order-evolution-of-glosses-on-the-common-law/
Pinder A.J., Dresner M. (2007). Meningococcal meningitis after combined spinal-epidural analgesia.Leeds, UK.