Relationship Between Equity And The Common Law

Chapter 4 "Equal Opportunity and Democratic Community", examines the concern of who gets what in our society under the umbrella of justice of our social institutions. Consequent perspectives and reasonable thinking for any given situation was provided within the case’ samples; always with the purpose to maximize the conviction of a decision making and correct resource allocations.

After explaining a little bit about the case, in which the sentence we focus on has been said, this essay is going to principally deal with the differences between Common Law and Equity Law. Indeed, even though the Act 140 years ago, fused both, there are still differences that

(2) Tamanaha, Brian. 2008. “Law”, Oxford International Encyclopedia of Legal History, St. John's Legal Studies Research Paper No. 08-0095. Link in Course Readings and Available online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1082436&rec=1&srcabs=1012051

Rights are created to ensure that citizens of this society are protected under law and are treated impartial in front of the law. When the protection and recognition of an individuals right is not seen thought in court, numerous of issues can surface the individual who is being treated unjustly may filing a complain of unfair treatment in court. In the Lin Family Murder case, the accused Mr Xie is entitled to their rights of which are not withdrawn in the view of he being the guilty party; this would lead to a breach in the code of recognising the rights of an individual (Visitation, 2015). The effectiveness of the adversary system in achieving justice regarding the protection and rights of an individual is

Procedural justice is defined by Aronson, Wilson and Akert as people’s judgments about the fairness of the procedures used to determine outcomes, such as whether they are innocent or guilty of a crime. This deals with our perception of fairness of the process of law, although the idea is applicable in civil matters as well, such employee/employer contract claims. For procedural justice equity is paramount. When it is perceived that a dispute is fairly evaluated, with due consideration, all parties are more likely to accept the determination, even when directly in opposition to their own interests.

Courts of equity were the Chancery courts and existed historically as an entirely separate department from the Supreme Court, imitating the historical arrangement in place in England. A primary reason for the development of the Chancery courts was to provide a means of redress where the common law provided an inadequate remedy or no remedy at all. In equity, generally the court’s power is to direct someone to act or to forbear from acting, which circumstances clearly cannot be redressed by the award of money damages.

Equity is a source of law which is based on flexible principles to supplement the common law, and thereby alleviating the harshness. Lord Scarman once described the principle of equity in National Westminster Bank PLC v Morgan as a ‘world of doctrine, not of neat and tidy rules’ which emphasises its rigidity nature to provide its flexibility. As Alastair Hudson noted , many different doctrines fit inside English equity which introduce a more systematic approach to the common law. It is important to examine equity’s historical development to recognize the root of how it was formed and used, and how it still serves a purpose within the modern legal system.

Australian common law largely depends on the discretion held by the court under equitable doctrine. If the termination of employment occurs as a result of employer’s wrongful repudiatory breach, the employee may be relieved from contractual obligations including restrictive covenants. However, the employer can seek for damages if the ex-employee breaches the equitable duty.[ Briggs v Oates [1990] ICR 473]

The conventional accounts of Justice normally begin by stating a fundamental rule of Aristotle – Justice is to treat equals equally and unequals unequally, and that unequal treatment should be in proportion to the inequality. In everyday life though, justice is seen as an attribute of law, while all laws are not necessarily just. Many great socio- political movements of the world have focused from time to time on unjust laws eg Apartheid laws in South Africa and Caste laws in India. Impartiality and fairness are understood to be the two aspects of justice. But it would be misleading to suggest that Justice refers solely to the fair application of a rule.

The legitimate equity framework is separated into two principle courts, criminal and common. Criminal courts are intended to decide if a man has abused a criminal law; an activity that is unsafe to society. At the point when a court confirms that an individual perpetrated a wrongdoing, that individual will get a sentence or conviction. The sentence or conviction may bring about fines, detainment, group benefit, or a blend of every one of the three. Common courts are intended to determine contrasts when private people or substances, for example, a company can never again achieve a concession to their own particular or neglected to complete a legitimate obligation owed to the offended party. The offended party may request that the court advise

But one could argue that such an effortless attempt to reconcile an injustice would open the door to exploiting the Principle of Rectification. Furthermore, it appears that rights can be violated by others so long as the victim is indemnified following the transgression and those involved are not in a worse position compared to what they might be in a state of nature as Jonathan Wolff espouses, ‘violate first, compensate later’ . In addition to that, it fails to comprehend that the victims might not always receive the equivalent amount in compensation whilst the guilty effortlessly accumulate immeasurable wealth.

Our universal human rights which extend to every living person on this planet, are not achieved through the legislator, nor the executive but within the judicial arm of government. It is within trials that individuals can attain a sense of justice, fairness and certainty in an impartial outcome to a case. The jury system breathes confidence into the concept of justice, where the power is decentralised from elitist powerful judges and put into the hands of ordinary members of the community. Individuals are not prepared to accept a decision made by so-called experts, by a board of judges, or by a dictator. They are prepared to accept and outcome which stems from the wider

The preliminary point into an inquiry of distributive justice is to disconnect the conjunction of “distributive,” and “justice”. For the purpose of this essay, I will inherit and accept John Rawls explanation of justice from A Theory of Justice. “Justice,” according to Rawls, “is the first virtue of social institutions.” Therefore, from a societal perspective, justice as the first virtue negates the utilitarian maxim that a loss of freedom for one would be acceptable if there was a greater good to be shared by others. In a truly just society, all people are treated fair. The questions of individual liberties are taken as settled. In the just society, liberty, rights, and fairness are not subject to a utilitarian calculation nor are they susceptible to political bargaining.

Today, we are met with disparity, and social stratification where individuals are positioned in a hierarchy that decides their access to resources, wealth, power, and prestige, which restrains an individual's life chances. Among the few values, but unfulfilled dreams of humanity, one is that of an ideal society. It has been called Utopia and has been a common goal among citizens whose hearts seep at the injustice and abuse of the humble. A vast majority of considerable scholars and thinkers have attempted to characterize the conditions, standards and components of such a society. For supporters of the theory that justice is a piece of normal law, it includes the arrangement of consequences that gets from any form of action. Justice, is a prevalent

His restatement of classical natural law and his own new theory of natural law not only remove doubts, raised and insinuations spread by positivists about natural law in a forceful and convincing manner but also challenge the so called objectivity in positivism and exposes its inadequacies in capturing all aspects of law. He neither rejects nor asks for the abolition of existing schools of jurisprudence but instead seeks to correct the historical imbalance that existed in conventional jurisprudence from the middle of the 19th century to the later part of the 20th century. According to Finnis taken together his nine ‘basic requirements of practical reasonableness’, and seven ‘basic goods’ constitute the universal and immutable ‘principles natural law’. Together, they are clear enough to prevent most forms of injustice. It is these basic goods and methodological requirements that give rise to several exceptions-less obligations with correlative exception-less natural (human) rights. For Finnis justice means common good. In his conception of justice both distributive and corrective justice are to be seen as two aspects of the same thing i.e. fostering of common good in a society. This in effect requires the participation of all individuals in the basic goods/basic values according to a coherent life plan and in conformity with other