A Look at The Idea of Equity as Per The Civil Law System

Introduction

In the English common law system equity is the principle which governs the legal system. Equity in general happens to be nothing but a basic set of rules or legal principles and maxims which possess the power and legitimacy to override the law in question. This is the system which has given the civil legal system all its limbs and extensions.

The civil law legal system basically flows from equity. It is said rather believed and proved beyond any dispute that the principle of equity on the whole alleviates the severity that exists in the common law system and overshadows it . It allows the courts to apply their prudence and relate fairness in unity with the natural law system. In reality, contemporary equity is restricted by procedural and substantive system. English legal critiques lean to spot on technological features of equity.

In the case of historical criticism the critiques state that the equity was lacking of the prompted rule in the initial stage. Lord Chancellor seldom arbitrated in the major features of the equity in according to his principles . Various critics state that the equity must be flexible in nature. This paper attempts to explore the theory of flexibility in the equity principle. Along with that this paper attempts to explore the effect of growth and development in the principle of equity in the modern aspect.

Development of the concept of equity

That court order provide him the written privilege to re-admission to his own territory and recognized this privilege in the defense of the violation of his right of property of his land. In the year of 1253, to avoid judges from discovering fresh writs, legislature stated that the authority to concern writs would after that be moved to judges merely one writ at a single phrase of time, in a writ for privilege wrap up recognized as a outline of act. As a result of deficiency in a legal cure, the only alternative of plaintiff could be pleading to the King .

So, as a result of it, populace started pleading to the King for reprieve against unjust court decisions, and as the community of petitioners speedily developed, so the King hand over the job of trial those appeals to Lord Chancellor . As the premature stage Chancellors had short of official legal guidance and produced small observance for precedent, their conclusions were over and over again widely miscellaneous.

In near about the year of 1529, an advocate named as Sir Thomas More, was selected in the position for Chancellor which makes the commencement of an innovative era. The question put forth primarily concerned its worth and the certainty it possessed. While on one hand, one chancellor could have a long foot and the other could have a short one while in the other instance, the third one could have yet another different measure of it. The problem would be that all of it would qualify to be a similar thing in the conscience of a chancellor.

With the development of the law of equity, it saw a rising conflict and rivalry with the common law principles. The parties to a dispute might indulge in “litigation shopping” and thus would look for an equitable restraint that shall impose a prohibition on the enforcement of the orders of the common law. The punishment that was imposed for not having obeyed the equitable “common injunction” and enforcement options that was given by the judgment of the common law courts amounted to an imprisonment .

Sir Edward Coke, who happened to be the Chief Justice of the King’s Bench, initiated the system in which the writ of habeas corpus began to be issued which demanded that those offenders who were imprisoned for having made contempt of the chancery orders would be made to go on release.

This difficulty that was ongoing reached a highest threshold in the case of Earl of Oxford (1615) where the decision that was delivered by Chief Justice Coke, was wrongfully obtained by commission of a fraud. Lord Ellesmere, who was the Lord Chancellor, passed a linked injunction from the Court of Chancery which expressly imposed a prohibition on the common law order from being enforced. The two conflicting courts became stuck up in a standoff and subsequently, the matter was referred to Sir Francis Bacon who happened to be the Attorney General. Sir Francis Bacon referred to seek the authority of King James I and under such authority, he upheld that the common injunction can be granted and it was also concluded by him that in case if any conflict lies between common law and equity, what would remain in existence is equity .

Development of modern equity

Post 1473, the legal system witnessed a development of the Chancery system where the rights of the parties were determined by the Courts based on its own issued decrees and actions. Gradually problems started arising with the different mode of action of the chancery system and based upon situations when the decisions came directly under conflict with the prevalent system under the common law .

The process in the Court was not related to the issue of writs per se but was concerned with the putting forth of a petition that was under the requirement of the fact that the complaint that is the subpoena should be given attention but at the same time, there should be ample room of prevention that should be provided to prevent any action under common law and at the same time, prevent from issuing any kinds of injunctions .

Thomas Moore has advocated for the proposition that injunctions or any kinds of restraints should not be issued in case if the judges who occupy the seats in the common law courts would resolve with the harsh reality of the system but at the same time, if they fail to agree and conjointly decide on a single issue in a situation when the systems under existence were under the fate of destiny to collide and concur. In the year 1617, the Chief Justice of the King’s Bench was Sir Edward Coke.

The Chief Justice put forward complain to the then king James I who gave an affirmation to the rights of the chancellor which eventually gave development to the equity jurisdiction. Settled principled were subsequently developed by the Chancellors who succeeded. The most notable figures in this development were Lord Nottingham who is popularly referred to as the father,

Lord Hardwicke who happened to be the developer of the principles that were settled and Lord Eldon who is known as the consolidator. There was a massive dissatisfaction that was caused in the Chancery. What was the most attributable cause for this discontent in the Chancery was that there was a buffer increase of workload and the administration happened to be highly ineffective . This ineffectiveness came in association with the fee structure. This entire list of exhaustive causes resulted in the dissatisfaction there in the Chancery. In order to resolve this dispute, more number of appointments with regard to judges was made and a harmonious situation was intended to achieve .

The remedies that were assimilated with the harmonious construction between the provisions of the common law and equity facilitated this regard. The resulting legislations in this regard were the Common Law Procedure Act 1854 and Chancery Law Amendment Act 1858. It was eventually felt that that time has been attained which immediately demands for further reform.

The flexibility in the theory of equity

Generally it is presumed that equity principle is an opposite or sometime complementary to the common law legal system . Whenever the law is strict the equity provision remains flexible on that particular matter. This principle advocates for the discretionary of the court of judges rather depending on only to the rules and law. This principle provides for justice rather those establishing mere rights of the parties.

In the feminist jurisprudence the profounder claims that the law of equity advocates for the justice to the women by applying the rule of flexibility. Though, many people argue that the proper flexibility in terms of equity is an imaginary thing. Lord Denning advocates that there is a need for a new Equity. He state that the established law can be changed for the obvious and good reasons and for the requirement of the society. After 50 years of this approach, there were so many modifications are made according to need of the society. The claim of the Lord Denning is considered to be one of the most modern approaches to the concept of equity .

Feminism in equity

Feminism in equity and feminism in gender are the two classifications of feminism the definition of which was for the first time put forward by the eminent scholar Christina Hoff Sommers in herself authored book “Who Stole Feminism?” She went on to give the description of feminism in equity as possessing the objective of ideology of ascertaining equal and legitimate rights as conferred under law to both men and women.

She went on to define feminism in gender as possessing the intention of combating the challenges put forth under sexism and social structures of patriarchy which come to be addressed in everyday practice associated to society and cultural diversity. Sommers herself very strongly stands for advocating her view which she gives preference of calling feminism in equity and at the same time, she continues to constantly criticise her concept of what continues to be feminism in gender .

Sommers gives a description of feminism in equity as an ideology that has its roots deeply implanted in the essence of classical aspects of liberalism that has the specific aim to attain an entirely equal footing as far as the civil and equal rights of women are concerned. Experimental psychologist Steven Pinker gives an exhaustive expansion on what Sommers has stated. he continues to say that feminism in equity is nothing but a simple moral doctrine which has its basic impetus on treating men and women equally. it makes absolutely no commitments that require and give regard to livid and unenclosed issues possessing an empirical nature that exist either in psychology or in biology.

As per the views of the researcher, after having analysed, the entire aspects of the existing law, and the various perspectives of the equity, it can be said that in order to have a proper reform on the field of feminism, equity can be totally argued in favour. As far as the different dimensions of feminism are concerned, various researchers witness a significant restructuring associated with the construction and deconstruction of the law. Of course, there are certain exceptions to this feasible option as regarded in Wong’s essay titles “Property Rights For Home-Sharers: Equity Versus A Legislative Framework”. Another scholarly work which points the underlying exceptions is given in Fehlberg’s study of Sexually Transmitted Debt.

Relevant cases on the purposes of development

Williams and Glyn’s Bank v. Boland is an important case in this discussion. This is important aspect in the modification of the mortgage industry. In this case for the very first time lenders would have take consideration of a woman at home. But the court of Appeal extended the offered protection to Mrs. Boland.

In the later part of the 20th century the position of equity increased and advocates the situation of flexible and adoptable rather than mere technical and rigid. The house of lords focuses on the progress of equity. The equitable principles create more bendable to the urge of the woman and feminism. In the case of Re Roger, Lord Denning develop a fresh role for the equitable principle or equity. The increase in home ownership provision, cases of divorce, cohabitation outside the institution of marriage creates the reform in the property law in 1925. The law court applied the law of trust to find out solution in the case of Mrs. Roger. But the Lord Denning was opposing the technical and rigid application of the law of equity. It creates a new development in the case of equity. The justice appealed for the flexibility in the concept of equity.

In the case of Rimmer v. Rimmer , Lord Denning declared a new aspect of equity principle regarding the flexibility. The law and judgment provide that the family ownership is the joint ownership between husband and wife. The view of flexibility in the law advocates for the wife’s equitable right in the property. The concept of flexibility approach in the equity carry is forward by Lord Diplock in the case of Gissing v. Gissing .

The flexibility principle basically helps to construct he feminism approach to the principle of equity in the modern aspect. The development of this is taken place by different cases. Lord Bridge contributes than women paid less to the house hold because they have less access to the financial stability. Women generally utilize their money to house hold things and on their children as described in the case of Burns v. Burns .

In this case the House of Lords admit the injustice to the women in 1990’s regarding the application of equity principle. Justice Harman in 1950 state that equity is assumed not to fulfill the period of child rearing, but in the era of 1952 the situation is changes. In 1952 Lord Denning claim that the equity need a good and fresh approach in the modern era. But the flexibility becomes a myth. It fails to protect the claims and interest of the women. Though the evaluation procedure is still ongoing but it requires more flexibility in to ensure the right of the woman.

Conclusion

It can be said that it will become totally wrong to say that equity has essentially been a concept under female dominance. The critical study of the law under equity clearly indicates that it has gradually gone through various kinds of changes over the years and has evolved manifold. The development can be said to have been a critical issue and it is something which has always thrived to be on the positive side of the slope. Though, there are certain flaws in the existing system, yet it is also not unknown to us that even the best legal system has flaws in it and considering that in view, it can be said that the existing flaws are negligible.

The only requirement at this point of time is that equity needs to be a bit more flexible in those points where the law remains strict and unbent. It also needs to be a bit more discretionary where the law remains obligatory and binds the citizen under its purview. It also needs to be a bit more humane because the main thing with which it is concerned is doing and imparting “justice” rather than giving and justifying the ascertainable “rights”.