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Discuss about the Proposal To Support Enforcing Regulations For The Rule Of Law.

Understanding the Concept of Equity

Equity is a misunderstood term and hence, often misinterpreted and wrongly applied by the Court of common law in terms of granting equitable remedy. As per Jurisprudence, Equity refers to the power to bring justice to an aggrieved by exercising discretionary power to settle the rigidity and harshness of the strict laws and rules. In a broader sense, Equity refers to the caliber to acclimatize the assistance to the situation of a certain case in effect. Nevertheless, in jurisprudence, equity is not an open-ended phenomenon of endless or immeasurable discretion vested upon a single judge. While the Common Law Court functioned based on the customs, tradition and letters of the written law that governed England. It has been held that the Chancery Court would not consciously try to correct the strictness of law or to remove its defects under any given circumstance, beyond the pre-settled principles and rules of equity jurisprudence. Often the terms ‘equity’ and ‘equitable’ are difficult to be segregated and defined. Both of them refers to fair, compassionate, just and flexible which results in ambiguous meanings when the court pronounce its discretionary decisions based on the principles of equity. When the court of common law points out that it ordered to rescind a contract for relieving a party of its harshness and rigidity, and pins such decision on the ground of equity, such order speaks nothing about the principles of equitable interest, precedents or remedies. When a decision is delivered based solely on equity, it lacks the sense of legal analysis and seems more like the Judge’s feeling of just and fairness under a certain circumstance. However, one of the fundamental element of equity is its flexible nature, while such flexibility is exercised against some specific rules.

In Anglo-American law, the two courts that existed were the Common Law Courts presided over by Judges, and the Equity Court controlled by the Chancellors who were the high Minster of the King and also a Bishop of the Church. The Chancellors came up with a list of substantive rules and remedies, which practically could alter the orders passed by the Common Law Courts. In the attempts to define and elucidate the concept of equity, commentators have laid down that equity is a phenomenon or concept under jurisprudence that used to be administered by the Chancery Court of England, and now adopted and implemented by the Courts of all modern country with a sound legal system. In today’s legal system the legal persons still refers and compares legal remedies with that of the orders of the Common Law Court and equitable remedies with the remedies provided by the Chancery court or the Equity court. The court of Chancery have always strived to handle the urgent and the critical matters by means of preventive justice and specific relief, which the principle of equity advocates. With the advent of more cases to the Chancery court, a sense of steep competition grew in the mind of the Common Law Courts judges and it was declared that the equitable remedies had limitations by saying that the a equity courts did not have the authority to lessen the risk of legal consequences of a party. It was also held that judges should not be distracted by the charming tone and fairness of the concept of equitable remedy as they lack analytical value and precision. It is said that while granting an equitable remedy, a court cannot deviate from the letters of the law only as it seem easier and fairer in that circumstance. Principles of equity can only be implemented where a particular case meets the underlying norms and principles of the maxims of equity. The principles of equity comprises a list of rules and norms, some of which are highlighted and discussed below.

Equity in the Court of Common Law and Chancery Court

Having its source in the doctrine of equitable estoppel, this maxim refers to the circumstance where an individual is required to do as per the agreement on which he has entered into the contract with another. Equity will assume that the act has been done exactly the way it needed to be done, even before it was performed. It involves the principle of equitable interest of a party to the contract and therefore, a breach of such contract would attract equitable remedy.

Performance of an obligation needs to be considered as enough unless the law requires specific performance of the case. Equity regards such specific performance as a gift so that the creditor cannot demand exercise of both legacy of law and the specific performance of the contract.

The aggrieved party seeking equitable relief must agree to complete all the needful obligations pertaining to the contract. His own actions must be just and fair before he seeks fairness from the court of law.

Equity stands for equality among the parties to a dispute. The maxim stands upon the fundamental principles of equality among equals and therefore has a wider sense on which several equitable doctrines are based on. It points out that the rule of common law may be partial or advantageous for one party in comparison to another; however, the law of equity measures the litigation parties of the same case on an equal footing.

This principle of equity comes to action when two or more principles of equitable interest can be implemented to a case, the one that comes first and foremost in time shall be applied; provided that such number of principles are have the same interest.

This principle of equity speaks that specific performance or equitable remedy cannot be implemented where both the party to an agreement has equal grounds to remedy and neither of them has wronged. Parties had the tendency to approach the equity court for their flexibility, however not knowing to be redirected to the common law court due to the lack of legal defense.

It is most commonly stated that one who seeks equity must come with clean hands, which means that an individual should not seek equity or equitable remedy for making profit out of his own wrong or when the other party has not wronged him. However, it is not implied that a previous convict or a ‘bad person’ cannot claim for equitable relief. It only claims that the person asking for the implementation of equity must have a cause that is actionable under the principles of equity. The point of unclean hands only comes to picture when a person’s wrongful act coincides with the right he claims to be enforced by equitable remedy.

Principles of Equity

It is laid down by the principles of equity that an aggrieved person should delay the actionable cause and must act swiftly as justice should not be delayed or ignored. Otherwise, the aggrieved party are considered to be guilty of laches, an unanswered and unreasonable delay in bringing a litigation to action. In most times, the cases comes under the obstacle of limitation statute where the cases are prohibited to be heard by a court on the grounds of delayed filing.

Although it is believed that principles of equity serves equitable relief to aggrieved parties, however it needs to be understood that equity does not provide a remedy, which contravenes the letters of the law. The Chancery court never intended to override the decisions or procedure of work of the Common law court; it only meant to give a different approach to the conventional and traditional remedies and wanted to operate in a more flexible way. Nevertheless, equity does not speak for contravening the legal principles or statutes; it only delivers equitable rights and relief. Yet, in modern times, this principle of equity has been seen to be violated in many cases when the common law rules have contradicted with the equity; the rule of equity has stand still.

It is perhaps the most important aspect of the principle of equity, which says that a wrong cannot persists without an appropriate remedy. It is said that a wrongful act must always have a relief or remedy which the aggrieved party deserves to be awarded by the way of equitable remedy. The wronged or the aggrieved party has an advantageous position in terms of seeking the equitable relief. In terms of equity, such wrongs are dealt and awarded with specific performance or injunction. The Latin maxim to this principle is cited as ‘ubi jus ibi remedium’, which means where there is a wrong, there is a remedy. This principle was first discussed at length in the case Ashby v. White. While it was applied in its full sense in the case Marbury v. Madison.

The Dworkin theory based on a model of common law adjudication says that the judges of the common law court have a limited discretionary power. It is said that the judges of the common law court is under an obligation to weigh and apply legal principles and statute to come up with a decision. However, it is argues that equitable discretion can be applied to the Dworkinian model by the judges of the court of equity while deciding whether to award or hold the equitable remedy. Dworkinian theory does lay down certain facts about judicial discretion and distinguishes between weak and strong discretion. He writes that a weak discretion is exercised while pronouncing judgment where there is application of legal standards, whereas for strong discretion, the judge has the liberty to choose between two or more legal outcomes and can also deviate from the conventional or traditional way of delivering remedy. Nevertheless, it is evident that equitable jurisdiction have a concrete ground for exercising discretion.

Equity and Equitable Remedy

In situations where an unconventional or equitable remedy is necessary, the Court is required to apply the principle of equity by adopting necessary changes. It has been observed that courts have made use of their discretionary power to grant in different matters where it was utmost necessary, like in death sentences. Although, in criminal matters, discretionary power of the court is curbed to the maximum as they require following the letters of the law strictly. Yet, on the grounds of principles of equity, an equitable remedy is often awarded. Most of the times, High Courts use their discretionary power in matters of staying petitions where the judgment was delivered by a lower court. However, it is to be considered that the discretion given to the court to deny or allow stays of petition has resulted in injustice and inconsistency. Therefore, it is claimed that courts should strike a balance between the relevant matter in question and the provision of law that has been challenged.

  1. Articles/Books/Journals

Gorski, Paul C., and Katy Swalwell. "Equity literacy for all." (2015) Educational Leadership 72.6, 34-40

Gould, Mark. "Equity or Dworkin’s Egalitarianism: Principles that Incorporate Policies Versus Principles that Stand on their Own." (ANCILLA IURIS (anci. ch) 61 2016): 61

Jansen, Linde. TOWARDS A MORE COHERENT DWORKIAN THEORY OF JUSTICE: a critical analysis of the objections to Dworkin’s theory of justice regarding the ideal/non-ideal dichotomy. (2016) BS thesis

Katz, Stanley. "The politics of law in colonial America: Controversies over chancery courts and equity law in the eighteenth century." (1971) American Law and the Constitutional Order, 46-52.

  Klinck, Dennis R. Conscience, Equity and the Court of Chancery in Early Modern England. (Routledge, 2016)

  Llewellyn, Karl N. The common law tradition: Deciding appeals. Vol. 16. (Quid Pro Books, 2016)

Louis, Gregory E. "A Proposal to Support Enforcing Regulations for the Rule of Law." (Clearinghouse Rev.2016):1

Macpherson, Jane Elizabeth. Leading for Equity: Principals' Strategies. (Diss. 2016)

McDonald, Iain, and Anne Street. Equity & Trusts Concentrate: Law Revision and Study Guide. (Oxford University Press, 2018)

Milsom, Stroud Francis Charles. Historical foundations of the common law. (Butterworth-Heinemann, 2014)

Ramjohn, Mohamed. Unlocking Equity and Trusts. (Routledge, 2017)

 Sherwin, Emily L. "Fiduciary Law and Equity: Enforcing Loyalty." (2018)

 Sorell, Tom. "Law and equity in Hobbes." (2016) Critical Review of International Social and Political Philosophy 19.1, 29-46

Virgo, Graham. The Principles of Equity and Trusts. (Oxford university press, 2018)

  1. Cases

Ashby v. White [1703] 92 ER 126

Marbury v. Madison 5 U.S. (1 Cranch) 137 [1803]

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