COMMON LAW AND EQUITY

Two technical terms of great importance that are likely to puzzle the novice are “common law” and “equity”. The law of England may be said to be composed of three great elements:
legislation, common law and equity. To this must be added the directly applicable law emanating from Europe.

Legislation
The most important kind of legislation is the Act of Parliament (otherwise called a statute ), through which the government of the day carries into effect its principal
policies. This is known as primary legislation . What is called delegated legislation , like the many government orders generally known as statutory instruments , has come to be of great
importance as well. About 3,800 such instruments are promulgated every year, adding detail to the legislative framework created by the Act of Parliament. A non-lawyer (or layman) is
not likely to experience difficulty in understanding what constitutes primary legislation. Not so, however, with common law and equity, which need fuller discussion.

Common law
The phrase “the common law” seems a little bewildering at first, because it is always used to point a contrast and its precise meaning depends upon the contrast that
is being pointed. An analogy may perhaps make this clearer. Take the word “layman”. In the preceding paragraph the word was used to mean a person who is not a lawyer . But when
we speak of ecclesiastics and laymen, we mean by “laymen” non-ecclesiastics. When we speak of doctors and laymen, we mean by “laymen” non doctors. “Laymen”, in short, are
people who do not belong to the particular profession of which we are speaking. It is somewhat similar with the common law . Originally this meant the law that was not local law , that is,
the law that was common to the whole of England . This use may occasionally be encountered, but it is no longer the usual meaning.
More usually the phrase will signify the law that is
not the result of legislation , that is, the law created by the decisions of the judges . The decisions of the courts which create and lay down the law are called precedents . A third use to
which the phrase may be put is to denote the law that is not equity (i.e. that developed by the old Court of Chancery). In this sense it may even include statutory modifications of the
common law, though in the previous sense it does not.
Finally, it may mean the law that is not foreign law ; in other words, the law of England, or of other countries (such as America) that
have adopted English law as a starting-point. In this sense it is contrasted with (say) Roman, Islamic or French law, and here it includes the whole of English law; even local customs,
legislation and equity.
It will thus be seen that the precise shade of meaning in which this chameleon phrase is used depends upon the particular context, and upon the contrast that is
being made. In contrasting common law with legislation and equity I am making particular reference to the distinctions set out in the second and third senses of the phrase.

Equity
The term equity is an illustration of the proposition that some words have a legal meaning very unlike their ordinary one. In ordinary language “equity” means natural justice;
but the beginner must get that idea out of mind when dealing with the system that lawyers call equity. Originally, indeed, this system was inspired by ideas of natural justice, and that is
why it acquired its name; but nowadays equity is no more (and no less) natural justice than the common law, and it is in fact nothing other than a particular branch of the law of England.
Equity, therefore, is law. Students should not allow themselves to be confused by the lawyer’s habit of contrasting “law” and “equity”, for in this context “law” is simply an
abbreviation for the common law. Equity is law in the sense that it is part of the law of England; it is not law only in the sense that it is not part of the common law .
The process whereby
equity came into being may be briefly described as follows. In the Middle Ages, the courts of common law failed to give redress in certain types of case where redress was needed.
Disappointed litigants petitioned the King, who was the “fountain of justice”, for extraordinary relief and the King, through the Chancellor, eventually set up a special court, the Court of
Chancery, to deal with these petitions. Eventually the rules applied by the Court of Chancery hardened into law and became a regular part of the law of the land. The most important
branch of equity is the law of trusts , but equitable remedies such as specific performance and injunction are also much used
The student will learn how, in case of conflict or variance
between the rules of common law and the rules of equity, equity came to prevail. This was by means of what was called a common injunction . Suppose that A brought an action against
B in one of the non-Chancery courts and, in the view of the Court of Chancery, the action was inequitable. B’s proper course was to apply to the Court of Chancery for an order, called a
common injunction, directed to A and ordering him not to continue the action. If A defied the injunction the Court of Chancery would put him in prison for contempt of court. Equity thus
worked “behind the scenes” of the common law action; the common law principles were theoretically left intact, but by means of this intricate mechanism they were superseded by
equitable rules in all cases of conflict or variance. 55 The result justified the sarcasm of the critic who said that in England one court was set up to do injustice and another to stop it.
This system went on until 1875, when as a result of the Judicature Act 1873 the old courts of common law and the Court of Chancery were abolished. In their
place was established a single Supreme Court of Judicature, each branch of which had full power to administer both law and equity. Also, common injunctions were abolished and
instead it was enacted that, in cases of conflict or variance between the rules of equity and the rules of common law, the rules of equity should prevail.

Common law as made by the judges

When the term “common law” is used in contrast to statutory law, it may mean either of two things, though they are closely
related. It generally means the body of law produced by decided cases without the aid of legislation. 56 Occasionally, however, the invocation of the common law refers not to previously
existing law but to the power of the judges to create new law under the guise of interpreting it. Nearly all the common law in the first sense is created by the common law in the second
sense, that is to say by the judges in the exercise of their discretion. How much discretion a judge has to expand the law is a complex question.