Equity … in its technical sense, may be defined as a portion of natural justice, which , though of such a nature as properly to admit of being judicially enforced, was, from circumstances hereafter to be noticed, omitted to be enforced by common law Courts – an omission which was supplied by the Court of Chancery.
- Snell
ORIGIN OF EQUITY UNDER ROMAN LEGAL SYSTEM
In ancient Rome, the term jus civile (civil law) was used to distinguish the proper or ancient law of the city or state of Rome from the jus gentium, or the law thought to be common to all the people.
In the Holy Roman Empire of German nations the reception was facilitated because its emperors cherished the idea of being the direct successors of the Roman Caesars. The Roman law, collected in the “Corpus Juris civilis” by the emperor Justinian I between 527 and 565, could be regarded as still being in effect simply because it was the imperial law.
ORIGIN OF EQUITY UNDER GREEK LEGAL SYSTEM
The word epieikeia has both a philosophical and practical moral significance in ancient Greek. The former is captured by Aristotle in the Nicomachean Ethics while the latter is represented in several New Testament passages.
Aristotle , Law is always a general statement, yet there are cases which it is not possible to cover in a general statement. In matters therefore where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. When such a situation arises, the lawgiver may “rectify” the problem.
On the one hand, according to the rectification theory, a judge will see himself trying to “correct” or “rectify” the inadequacy and error of the law by doing the “right thing” and making his decision. On the other hand is the interpretation theory, more popular in the late 19th-20th centuries, which argues that what the judge is really doing is applying the spirit of the law to the factual scenario that wasn't imagined by the law’s framers.
ORIGIN OF EQUITY UNDER ENGLISH LEGAL SYSTEM
Originally the King's Council carried out the three functions of state, namely legislative, executive and judicial.
Curia Regis gave way to Royal Courts
King's Council (Curia Regis) started of sending judges around the country to hold assizes (or sittings) to hear cases locally. Justices of the Peace (or magistrates) originated from a Royal Proclamation of 1195 creating 'Knights of the Peace' to assist the Sheriff in enforcing the law. They were later given judicial functions and dealt with minor crimes.
Writ system
The judges developed the writ system. The rule was 'no writ, no remedy'. Writs were issued by the clerks in the Chancellor's Office and they began to issue new writs to overcome these difficulties, in effect creating new legal rights.
In 1285 the Statute of Westminster II authorised the clerks to issue new writs but only if claims were in 'like cases' to those before 1258. The Chancellor supervised the Chancery where clerks (who originally worked behind a wooden screen - cancelleria - hence Chancery) issued writs, commissions and other legal documents.
The Chancellor dealt with these petitions on the basis of what was morally right. The Chancellor would give or withhold relief, not according to any precedent, but according to the effect produced upon his own individual sense of right and wrong by the merits of the particular case before him.
Independent authority of Lord Chancellor
In 1474 the Chancellor issued the first decree in his own name, which began the independence of the Court of Chancery from the King's Council....
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