Equity Plan

Equity Plan

1. Development of equity

   • "The Roman Contribution to the Common Law": Equity was made when the King couldn't decide all cases of people claiming that they were wronged by the common law. The Chancellor became the "Keeper of the King's Conscience". He acted as a representative for the king, showing that the Chancellor never tried to pose a threat.
   • "The influence of Roman Law on the common law": Equity was created because the common law was limited. Equity was administered in the Court of Chancery, which soon began to apply general principles.
   • Comparative law in a changing world: The royal courts were originally supported by other courts that solved disputes when the common law had no remedies. Equity was developed as these courts declined. This "replacement" could have demonstrated equity as a threat.
   • Ancient Law: New legal principles, through equity, superseded older law. However, equity didn't try to override the common law, as is demonstrated by the other sources suggesting that it is a supplementary system.
     • Roman law in English jurisprudence : a thesis for the degree of Doctor of Civil Law, in course, in McGill University / by John J. MacLaren: As Roman law had been prohibited from the common law courts, the Chancery formed its own set of law, through equity.
   • A BRIEF HISTORY OF MEDIEVAL ROMAN CANON LAW IN ENGLAND: As Richard II banned Roman law from the common law courts, due to nationalism against Rome, Richard made the Court of Chancery.

2. Influence of equity

   • Influence on the common law
     • The Influence of the Roman Law on the Law of England: The common law judges could reject writs if they didn't agree with the common law. "The influence of the Chancery on the common law was therefore far slower in operation and weaker than the Praetorian changes in the Jus Civile.
       • The Chancery was still more effective than legal education as it was an established legal institution.
   • Roman influence on equity
     • "The influence of Roman Law on the common law": The English jury, which limited the common law, was similar to the Roman iudex, who could only award monetary remedies. The Chancellor's role in issuing orders and injunctions could have been based on canon law's denunciato evangelica model. The Chancellors could find precedent from the Roman praetors who had modified strict Roman rules.
     • "The Relations between Roman Law and English Common Law down to the Sixteenth Century: A General Survey": Plucknett denies most Roman influence on the common law, because it "had little need to look backwards". However, he suggests that the Chancery borrowed from Roman law.
     • The Principles Of Roman Law And Their Relation To Modern Law: The Chancery shows indirect borrowing from Roman law. However, Buckland argues that there is merely a similarity between the praetor's Edict and the writ system.
     • Ancient Law: The ecclesiastical chancellors had knowledge of Roman and canon law, meaning that these systems were cited by Chancery judges.

3. Stereotypes of systems

   • Roman law as dictatorial
     • "MAGNA CARTA AND THE ROMAN LAW TRADITION" has its own prejudice against Roman law, rejecting it for seeming absolutist. "THE ROMANIZATION OF ENGLISH LAW" notes that other scholars have seen Roman law in this way, but suggests that this is a false perception.
     • Blackstone: “But we must not carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and Justinian [...] unless we can also prefer the despotic monarchy of Rome and Byzantium”. This could have been Blackstone's prejudice as he thought that Roman law was going to take over the common law.
   • Common law as representing freedom
     • "MAGNA CARTA AND THE ROMAN LAW TRADITION" suggests that the common law was democratic, but Common law and Judges, Legislators and Professors dispute this, suggesting that the common law was corrupted and oligarchic. This was because it applied to the elite members of society, so was corrupt. It was administered in central courts that were hard to reach for most of the population.

4. Reasons for equity being viewed as a threat

   • It was viewed as a rival to the common law: Week One of the MOOC Introduction to the English Common Law on Coursera, Comparative law in a changing world, Ancient law and The Principles Of Roman Law And Their Relation To Modern Law all use language to describe equity as a rival to the common law.
     • Modern scholars are now able to see equity as a supplementary system, rather than as one which competes with the common law - perhaps due to the fusion?
   • Common lawyers were proud of their system of law, so they may have seen equity as a threat because it tried to correct the common law - implying the common law had failures.

5. Relevance of equity

   • "The Inner Relationship between English and Roman Law": The 1834 Judicature Act didn't involve a complete fusion between equity and the common law - does this suggest that we still have further to go?
   • "Our Heritage from the Law of Rome": Nazi Germany rejected Roman law. If an absolutist regime rejects Roman law because of the freedoms it promotes, then we are wrong to see Roman law as dictatorial.