Law, History & Equity

This post will explore a bit about equity…
 

First the definition of ‘Equity’ is this: a source of law based on principles of fairness and natural justice.


Historically, the King of England would oversee and resolve disputes. You could only take a dispute to the King if you purchased a writ and over time these writs become fixed and inflexible and only parliament could supply them. It was the Provisions of Oxford 1258 that restricted the availability of writs. This rigidity and lack of remedies (for example only  damages were the outcome of going to court) forced people to petition to the King for natural justice. The petitions were given to the Chancellor to manage as it was the chancellor who was believed to be the conscience of the King. The petitions usually had one of the four allegations: (i) common-law is defective; (ii) the remedy of the court, damages, was not satisfactory and inadequate; (iii) the defendant was too powerful, unequal bargaining power existed and; (iv) court lack jurisdiction where non-domestic people where involved like foreign traders.Given the mass of petitions that were received, the chancellor created a court, Court of Chancery, to resolve these issues by applying flexible customary rules.

At first the chancery court was very unpredictable as it didn’t follow any basis of law, just merely the chancellor’s judgement and eventually these did form a precedent but anyway between 1673-1828 guidelines were prescribed and these were known as equitable maxims. Examples of equitable maxims include: (i) He who comes to equity must come with clean hands i.e.should not be trying to use equity for unfair and unjust reasons e.g. D&C Builders v Rees [1966] 2 QB 617; (ii) Equity looks at intention not the form i.e. equity will look at what intention has the person come here with not what they have done or history etc; and (iii) He who seeks equity must do equity i.e. equity must apply both ways its a kind of negotiation e.g. Chappell v Times Newspapers [1975] 1 WLR 482.


Examples of equitable remedies include: (i) specific performance so to compel a party to fulfill their contractual obligation e.g. Beswick v Beswick [1967] 2 All ER 1197; (ii) rescission so a resolution that brings the parties as far away as possible from original contractual position e.g. Redgrave v Hurd (1881) LR 20 ChD 1; and (iii) injunction so to cease a party from doing certain acts e.g. Lumley v Wagner [1843-60] All ER 814.


The Chancery court was successful in fulfilling its purpose of dispute settlement. However, there were conflicts with the regular Common law courts, outcomes were unpredictable and it suddenly had also had president over where common law and equity clashed. The King clearly stated the president of equity in the Earl of Oxford’s case (1615) 1 REP Ch 1 where the chancery court found the common law courts to have committed fraud and they put an injunction on the common law court. This dissatisfaction caused by the Chancery Court can be seen in comments such as ‘equity varies with the length of the chancellor’s foot’ (John Seldon, jurist). So Parliament put an end to this in 1873-1875 by creating the Judicature Act which stated that it the common law courts’ responsibility both to practice equity as well as common law reasoning. This tension between two sets of laws even in the one court has given scope for judicial creativity for making law.

It is important to note that equity itself is not a self-sufficient system, as Maitland says it is a ‘gloss’ on the common-law system, bettering the defects of common law. It is also important for studying precedent because it shows the value and need of precedent. Precedent which is a form of equity has been created to rectify some of issues and hardships associated with a common law system.

Causation

This video introduces the causation requirement in criminal law.

But before preceding to the videos here is a JPEG overview:

photo-10

There are 6 types of Novus Actus Interveniens that will be explored:

1. Natural Interventions/Acts of God

2. Third Party Interventions

3. Medical Interventions

4.  Drug Supply

5. Thin Skull/Egg Shell Rule

6. Victim Flight

What makes a crime?

This video is about the theoretical background behind the criminal legal system. I look at what makes a crime and three main philosophical foundations: legal moralism, the harm principle and paternalism.

Notes

A crime is an offence punishable by law. Arguably there are two reasons for criminalising an act or creating a crime:

1. The conduct itself is wrongful

There are three central arguments that make a conduct wrongful:

i. Legal Moralism

Lord Devlin in “Morals and The Criminal Law” 1959: immorality is what every right-minded person is presumed to consider immoral.

He argues that ‘immorality’ is a necessary and sufficient condition of criminalisation.  This view is based on the premise hat social harmony is jeopardised if morality is not underwritten by the law.

He argues that morality forms a ‘seamless web’. By this metaphor, he intended to convey the notion that ‘society’s morals’ form a fragile structure and that is morality is not reinforced legally, then damage to the entire structure will follow.

Problems:

Rejects rationality, doesn’t look at an empirical investigation of the effects of criminalisation, based it upon feelings.

Bentham warned us to be suspicious when officials claim they are acting in the name of ‘right minded people’. In many cases it just justifies the prejudices of legislators themselves and is dangerous.

Seamless web is also problematic as Hart points out people don’t abandon their moral views if they are not punished by law itself.

ii. The Harm Principle

People should exhibit free will and the state should only intervene if harm is caused to others.

The problem is, is this primary harm e.g. assault or secondary harm e.g.  seat belts

The Report on the Wolfenden Committee on Homosexual Offences and prostitution 1957 argues that the law is to intervene to protect vulnerable people and preserve public order but not to intervene in private lives of citizens or enforce any particular pattern of behaviour. The Committee was recommending that homosexual behaviour between consenting adults in private should no longer be a criminal offence.

The principle was famously articulated by J.S.Mill as “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’

Harm is to be understood not just as physical harm but a violation of any recognised interest.

Problems:

Is that if you are focused on only harm to others it becomes impossible to criminalise drugs or the wearing of seatbelt.

However, many modern harm theorists point out they would support it because it is potentially harmful to others. Kaplan explains that there are different categories of harm such as ‘public ward harm’. That is, he may impose on other the cost of rectifying the damage he causes himself. He may not be able to take up the economic responsibilities he owes others as a result . Furthermore, other individuals may copy the behaviour and suffer harm as a result.

However, this is still problematic because if we acknowledge the broad concept of harm, there are few actions that one can perform that threaten harm only to oneself. Thus leading to a world where almost all acts are criminalised.

Prohibition of harmful conduct may in itself result in harmful consequences such as the sale of say drugs may indirectly or directly harm consumers as well as the potential economic harm to business enterprises involved.

Bentham advocated a utilitarian outlook.

iii. Paternalism

Preventing someone from harming themselves – inferring with autonomy for their own good.

2. It is necessary to employ criminal law to prevent such conduct.

– This refers to the principle of minimising interference in an individual’s autonomy.