What is the Difference between Law and Equity?

What is the Difference between Law and Equity?
MarkPAnthony
Newbie
Avatar

Usergroup: Members
Joined: Mar 04, 2011

Total Topics: 4
Total Posts: 13
#1 - Quote - Permalink
Posted Mar 16, 2011 - 1:11 PM:
Subject: What is the Difference between Law and Equity?
What exactly is the difference between Law and Equity?

Well I'm looking at it from a common law perspective and to me, especially today, in the modern context, they seem almost identical.
Whereas I understand in the past, Equity was a sort of conscientious/individual justice; quite subjective,

today they have been codified and developed into the common law, resembling in manner as "precedential" law, working as common law principles in contrast what they historically were.

Despite how equitable remedies, today, are discretionary(its only obvious distinction), we now understand in particular cases, that certain preconditions is needed to engage equity, similar to common law remedies, and now equitable remedies are fixed, (there aren't any new remedies being expounded).

I guess what I am really asking and need clarifying is whether we can really count equity as being distinct from common law, as it is now fused into common law; how can we distinguish it if at all, without looking at its historical roots and its subtleties like it being discretionary, etc.

I am a new student to the study of Equity, so some clarifications and views on this would help.



Edited by MarkPAnthony on Mar 16, 2011 - 1:21 PM
Landru Guide Us
PF Addict
Avatar

Usergroup: Sponsors
Joined: Jun 30, 2010
Location: Austin, Texas

Total Topics: 19
Total Posts: 3364
#2 - Quote - Permalink
Posted Mar 17, 2011 - 2:02 PM:

I can only speak as a California attorney. Equity isn't necessarily related to common law at all. Equity empowers the judge to use his discretion to craft a remedy that results in a fair result, even if there is no specific statutory or common law remedy to that effect.

Thus, probate judges sit in equity and in a number of matters have discretion to devise remedies based soley on what is a fair outsome. For example, probate judges have broad discretion to allocate attorenys fees between fiduciaries and objecting beneficiaries in legal disputes over breach of fiduciary duty. The court can order the fiduciary to pay his fees out of his own pocket (as opposed to out of the estate), or he can order the fiduciary to pay the beneficiary's fees out of his own pocket, or some combination of the two. This power doesn't derive from any statutory law or common law power to allocate fees. It comes from the judges discretionary power in equity.

Now, you may be right that such discretion is always subject to appeal, and appellate cases have helped define what equity is permissible in certain contexts, and that becomes part of common law. But it isn't common law that empowers equity; it only limits it.

Also, you are correct that modernly very little room is left for courts to act in equity. Most judicial authority has been rationalized through statutes, and equitable authority now exists in only a few limited types of cases -- family law and probate being the ones that come to my mind.
sheps
PF Addict

Usergroup: Sponsors
Joined: Dec 15, 2008

Total Topics: 106
Total Posts: 7299
#3 - Quote - Permalink
1 of 1 people found this post helpful
Posted Mar 17, 2011 - 2:45 PM:

I'll give you a potted history of the development of law where I live.

In 1066, William the Conqueror invaded, and put in place the "common law" legal system. This was intended to curb the power of local magistrates and bring the legal system roughly under centralised control: to do this, he sent out judges who were of his mind. We still have "circuit judges" here today - they literally used to be judges who went round "on the circuit", judging cases and dispensing justice. Thus, the common law system was set up, and remains today as a mixture of case law and statute. Precedent is of vital important (stare decisis), in order to ensure consistency of decisions.

However, problems soon began to emerge. The only remedy offered at common law was pecuniary. Thus, if your neighbour stole your horse, all you could get in compensation was the money for the value of the horse. Obviously, this wasn't very satisfactory: what if you wanted the horse back? What if the horse had been your only childhood friend? And so on.

Now, the only way this situation could be resolved was via direct appeal to the king. Medieval kings weren't always over-keen on work anyway, and the volume of cases became so much that the Lord Chancellor was appointed to deal with them (until Thomas More came along, though, chancellors weren't lawyers and sometimes had no legal training at all). Therefore, if your case failed at common law, you could appeal to the chancellor on grounds of equity, or "fairness".

As time went on, equity grew to be incredibly prominent in civil law. In the late 1800s (I forget when, though I really ought to know) the Parliament Act merged the common law courts with the equity courts - mainly because of the ridiculous legal expense involved in appealing to a seperate court for equity, as satirised in Dickens' Bleak House - so now judges can make rulings based both on common law and precedents in equity.

In most Western legal systems we now use both common law and equity. Generally, one looks at common law first, and then looks at equity: the latter is really meant to "correct" and make fair the sometimes arbitrary and over-general rulings of the former. For example, I'm currently studying land law. Now, we have the definition of "land" in common law saying that your land includes a coelo usque ad centrum ("from the heavens to the depths of the earth"). However, once aeroplanes came along, we have a problem: under common law, every time a plane flies over at 30000 feet, you could sue them for trespass. So, in Bernstein v. Skyviews, it was decided as an equitable judgment that your rights to your airspace could only extend "as far as you required for reasonable enjoyment of the land". The common law defintion therefore stays, but equity sort of "improves" it.

I hope that helps.
MarkPAnthony
Newbie
Avatar

Usergroup: Members
Joined: Mar 04, 2011

Total Topics: 4
Total Posts: 13
#4 - Quote - Permalink
Posted Mar 17, 2011 - 8:56 PM:

Thanks gentleman, but my ultimate question/contention is whether Aristotle's view of Equity still applies to "equity" as we know it today: in brief:

Equity is "when...law lays down a general rule, and thereafter a case arises which is the exception to the rule, it is then right, where the lawgiver's pronouncement because of its absoluteness is defective and erroneous, to rectify by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognizant of the case in question.Hence, while the equitable is just and is superior to one sort of justice, it is not superior to absolute justice, but only to the error due to its absolute statement. This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality."

From the points you have made, it seems true to a certain(but a really practical) extent that equity is distinct and different from the law in that it fulfills these duties, by rectifying the law(and by this i really mean the common law) or (improving as mentioned), or trying to get a fair outcome. However what really struck me, in the study of equity(particularly its history) is that its success and its distinction lied in its "subjectivity"/"particularity" to cases, as opposed to the "generality" of 'common law'. The problem for me is, it seems today, Equity has become to a degree 'generalised', since its fusion into Common Law. Well it used to be about what, the Chancellor's conscience thought 'just' for a particular case in deciding how to rule; now the employment of equity and equitable remedies although still to a degree, tied by "conscience" and "conscientious dealings" follow a much more principled base, with the study of prequisties and ingredients of certain equitable remedies, so that if you fail to meet these criterions it is unlikely to engage these principles. E.g. promisorry estoppel; or easements, etc.
sheps
PF Addict

Usergroup: Sponsors
Joined: Dec 15, 2008

Total Topics: 106
Total Posts: 7299
#5 - Quote - Permalink
Posted Mar 30, 2011 - 12:52 PM:

Sorry for the late reply, MPA. I hope the thread can keep breathing.

MarkPAnthony wrote:
Equity is "when...law lays down a general rule, and thereafter a case arises which is the exception to the rule, it is then right, where the lawgiver's pronouncement because of its absoluteness is defective and erroneous, to rectify by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognizant of the case in question.


Sounds good to me.

Hence, while the equitable is just and is superior to one sort of justice, it is not superior to absolute justice, but only to the error due to its absolute statement. This is the essential nature of the equitable: it is a rectification of law where law is defective because of its generality."


Basically correct, but I'd steer clear of references to "absolute justice" if you're going to study law. If you live in America, Britain or an ex-colony, just call it "common law". Plus the main things which are affected by equity are the remedies - at common law, you can only get monetary damages, whereas in equity you can receive various non-monetary remedies, like:

- Rescission (the termination of a contract)
- Rectification (like the alteration of a deed or contract to what it "should have been", if it accurately summed up the intentions of the parties)
- Specific Perfomance (making someone go through with a contract)
- Injunction (preventing someone from doing something)

Therefore, if your negligence caused you to not finish building my house, I could claim for "specific perfomance" as well as monetary damages. All this only applies to civil disputes, of course. Too many people get civil and criminal issues confused.

From the points you have made, it seems true to a certain(but a really practical) extent that equity is distinct and different from the law in that it fulfills these duties, by rectifying the law(and by this i really mean the common law) or (improving as mentioned), or trying to get a fair outcome.


Well, certainly. "Equity" in a legal context means (sort of) "fairness". It's not "justice", as what is just doesn't have to be what is fair. wink

However what really struck me, in the study of equity(particularly its history) is that its success and its distinction lied in its "subjectivity"/"particularity" to cases, as opposed to the "generality" of 'common law'.


It's interesting, because equity begins as particular - it is, after all, where a particular judge in a particular case says "the outcome of common law here isn't fair" - but due to the nature of precedent, it quickly becomes general, as past judgments are used in new cases.

Well it used to be about what, the Chancellor's conscience thought 'just' for a particular case in deciding how to rule; now the employment of equity and equitable remedies although still to a degree, tied by "conscience" and "conscientious dealings" follow a much more principled base, with the study of prequisties and ingredients of certain equitable remedies, so that if you fail to meet these criterions it is unlikely to engage these principles. E.g. promisorry estoppel; or easements, etc.


It still is what the judge thinks is "fair" (not "just" - remember, the two aren't necessarily the same in a legal context): it's just that the remedies he can use have become so institutionalised that he can't really deviate from them. This is to prevent autocratic decisions.

I'm not quite sure what you mean when you refer to easements, if I'm honest.

Now I look through your post again, MPA, it seems that you've got the principles down. You're mainly objecting, it appears, to the lack of judicial independence from well-established principles?
MarkPAnthony
Newbie
Avatar

Usergroup: Members
Joined: Mar 04, 2011

Total Topics: 4
Total Posts: 13
#6 - Quote - Permalink
Posted Apr 1, 2011 - 4:12 PM:

"You're mainly objecting, it appears, to the lack of judicial independence from well-established principles?"

Yes I think that's it. But more particularly, in the simplest sense, is it fair to say that 'Equity' as administered by courts today, in the common law jurisdiction(i.e. the US or the UK), different from the 'Equity' administered previously, but most importantly does it depart from the 'equity' in Aristotle's understanding.

If so, why?

You made some interesting points, here, do you mind elaborating a little? (below)

"It's interesting, because equity begins as particular - it is, after all, where a particular judge in a particular case says "the outcome of common law here isn't fair" - but due to the nature of precedent, it quickly becomes general, as past judgments are used in new cases.

(...)

It still is what the judge thinks is "fair" (not "just" - remember, the two aren't necessarily the same in a legal context): it's just that the remedies he can use have become so institutionalised that he can't really deviate from them. This is to prevent autocratic decisions."

You mention institutionalisation of judicial remedies which I agree is what has happened since, I think that's my main contention as well, on the basis of preventing autocratic decisions.- Well does that mean, that the remedies are therefore fixed? That is, if a situation arose demanding the creation of some new principle that was outside the scope of common law, that the judiciary cannot create new remedies under the banner of equity?(Because this is what I think the judges did in the past, under equity, and what they have ceased to do).
sheps
PF Addict

Usergroup: Sponsors
Joined: Dec 15, 2008

Total Topics: 106
Total Posts: 7299
#7 - Quote - Permalink
Posted Apr 2, 2011 - 8:13 AM:

MarkPAnthony wrote:
Yes I think that's it. But more particularly, in the simplest sense, is it fair to say that 'Equity' as administered by courts today, in the common law jurisdiction(i.e. the US or the UK), different from the 'Equity' administered previously, but most importantly does it depart from the 'equity' in Aristotle's understanding.


I don't see how it has. It's just become codified, so that there's a standard set of equitable remedies for all. Judges should of course retain some independence from governmental politics (as according to the seperation of powers), but you're never going to be able to allow them much freedom from the law. I reckon that equity as delivered by most judges in most civil cases would meet the approval of Aristotle, as long as he realised that the courts are limited by the restrictions of practice. Which I'm quite sure he would.

You mention institutionalisation of judicial remedies which I agree is what has happened since, I think that's my main contention as well, on the basis of preventing autocratic decisions.- Well does that mean, that the remedies are therefore fixed?


I think they're quite fixed - this is to be expected, considering how long they've been in use - but obviously the main "variant" in any case is monetary damages. That "remedy" (which, naturally, is not an equitable one) varies all the time, hence the modern need for lawyers who entirely specialise in drafting costs.

That is, if a situation arose demanding the creation of some new principle that was outside the scope of common law, that the judiciary cannot create new remedies under the banner of equity?(Because this is what I think the judges did in the past, under equity, and what they have ceased to do).


It would be odd - given the nature of the areas of law where these remedies are often used (contract is the most common, I'd have thought) - if a situation were to arise which demanded a thoroughly "new" type of remedy. May I ask what sort of situation/remedy you have in mind? Where do you think the "hole" is in modern equity?
MarkPAnthony
Newbie
Avatar

Usergroup: Members
Joined: Mar 04, 2011

Total Topics: 4
Total Posts: 13
#8 - Quote - Permalink
Posted Apr 2, 2011 - 2:13 PM:

An interesting article I came across held an opposite view, what are your thoughts on this:

"Equity in English Law

The ambiguous meaning of Latin aequitas is maintained in early English usage as well. “Equity” in English law can mean simply “fairness,” but it is also the name given to the system of law developed originally by the Court of Chancery (the Lord Chancellors Court) to provide relief in cases applying the rules of the common law would have seemed too strict or unfair. Although “fairness” represents a departure from the original Greek understanding of epieikeia, the usage by the Courts of Chancery represents a clear continuation of the original meaning. By the fourteenth century, common law had become the ordinary law of the land, administered through courts independent of the crown. The king, however, retained the power to administer justice outside the regular system if a party could not obtain justice from common law. Although the rules of common law were bound by tradition and statute, the Chancellor was not bound by rigid procedures or rules.

The parallel with Greek epieikeia is obvious. Lord Ellesmere, following precisely the arguments of Aristotle and Aquinas, justified the Chancery Court as a means of softening the extremity of general laws. He too saw that general rules could never be adequate to the infinite diversity of human actions under complex circumstances. The Chancellors’ form of justice acquired the name of “equity” corresponding to the original Greek meaning. As in the Roman case, however, a gradual transformation occurred. Resentment of the Chancellors’ Court (and the non-rule-bound decision making it exercised) grew. After the

Reformation, the Chancellors Court lost its original form (consisting mostly of intuitive and common-sense judgments); equity gradually became “bound” by precedent (prior decisions), thus becoming more rule governed. The 1873 Judicature Acts reduced the Court of Chancery to a division of the High Court of Justice, and judges were empowered to administer both law and equity.

With few exceptions, independent courts of equity have also disappeared in American law. Like the English case, equity has come to be administered within the regular courts of law by judges bound by “principles of equity.” That is, equity consists of a further set of guiding rules and is not a rectification of shortcomings of all rule-guided decisions. The main distinctions between equitable rulings and standard rulings is the absence of a jury in the former. The distinction falls within rule-guided decision making and differs only in the sense of who makes the decision and what rules apply. In both the English and American systems, equity has become a body of rules or principles; as such, it is not what Aristotle, Aquinas, or Lord Ellesmer had in mind when they spoke of equity."

sheps
PF Addict

Usergroup: Sponsors
Joined: Dec 15, 2008

Total Topics: 106
Total Posts: 7299
#9 - Quote - Permalink
Posted Apr 3, 2011 - 9:45 AM:

MarkPAnthony wrote:
The parallel with Greek epieikeia is obvious. Lord Ellesmere, following precisely the arguments of Aristotle and Aquinas, justified the Chancery Court as a means of softening the extremity of general laws. He too saw that general rules could never be adequate to the infinite diversity of human actions under complex circumstances. The Chancellors’ form of justice acquired the name of “equity” corresponding to the original Greek meaning. As in the Roman case, however, a gradual transformation occurred. Resentment of the Chancellors’ Court (and the non-rule-bound decision making it exercised) grew.

Reformation, the Chancellors Court lost its original form (consisting mostly of intuitive and common-sense judgments); equity gradually became “bound” by precedent (prior decisions), thus becoming more rule governed. The 1873 Judicature Acts reduced the Court of Chancery to a division of the High Court of Justice, and judges were empowered to administer both law and equity.


I'd be cautious of bringing Aquinas into this - Aristotle not so much - due to his Christianity, and his preference for natural law. This isn't to say that there's anything wrong with Christianity and natural law, but only that such concepts probably don't have much relevance to modern equity due to their inflexibility. Equity today will not only take into account what is fair according to some semi-Platonic concept of "fairness" derived by the judge, but also what would be best for the individual parties involved in the case (whether it would be beneficial to grant specific performance rather than recission, for instance).

I did a thread on natural law and the more recent legal positivism a while back (I've forgotten most of the stuff I wrote in it rolling eyes ). Our laws today tend to operate prima facie from the standpoint of a sort of organic form of legal positivism (utilitarianism being arguably the most influential public-ethical doctrine in the West), but the spectre and arguments of natural law can still be seen. However, I'd argue that it's more difficult to see them in equity.

In both the English and American systems, equity has become a body of rules or principles; as such, it is not what Aristotle, Aquinas, or Lord Ellesmer had in mind when they spoke of equity.


But then, Aristotle (albeit as interpreted by Aquinas) and St. Thomas were both proponents of natural law and natural - in the case of the latter, divine - justice. I'm not sure I agree with the article that medieval philosophy would be that big on supporting a wholly organic (i.e. case-by-case) interpretation of equity.
locked
Download thread as
  • 0/5
  • 1
  • 2
  • 3
  • 4
  • 5



This thread is closed, so you cannot post a reply.