20
21 2.2 Equity in the civil law system
The development of equity within the civil law system followed a significantly different route when compared to its development under the common law. While the common law system had allowed for ‘judges-made law’ under the courts of law and equity, civil law had no such equivalence. The civil law system followed a stricter code-based system of adjudication, where certain officials codified what was believed to be the law. These legal scholars, known as the Glossators and Commentators were responsible for bringing together the law in written form and guaranteeing regularity in the law.9 Equitable standards were added to these bodies of law to ease the rigidity of the code system. This cataloguing gave these principles full effect in judicial decision making without creating two different sets of law as was the case within the common law.10
Since then, different civil codes have evolved, and they provide for fairness as part of the judicial decision making and thus merge the direct implementation of legal process and equitable principles.11 There are provisions within these codes which state that where a judge is given power under an act to determine a case in line with their discretion or proper reasons, the judge must ensure that their decision conforms to ‘justice and equity.’ Other civil codes employ terms like ‘doctrines of natural law’12 or ‘natural equity’13 or ‘doctrines of equity’.14 2.3 Equity under English common law
The use of equity within the common law became preeminent through the adjudication of individual cases. While the judges at no time planned to formulate a separate group of laws, equity ultimately evolved, through these cases, into ‘an independent source of law… a new system of law.’15 Equity evolved as a segment of the growth of the common law system.16 As the medieval historian, G B Adams, explains, both equity and common law applied in different
9 Ibid at 38.
10 Ralph A Newman ‘Equity in comparative law’ (1968) 17(4) Int’l & Comp. Law Quarterly 830-831.
11 Rossi (n6 above) 38-39.
12 Section 7 of the Austrian Civil Code; Article 16 of the Argentine Civil Code; Article 21 of the French Civil Code; Article 4 of the Constituent Assembly Law of Ghana.
13 Article 32 of the Civil Code of Colombia; Article 17 & 18 of the Ecuador Civil Code; Article 20 of the Honduras Civil Code.
14 Article 7 of the Puerto Rico Civil Code.
15 Gustav Radbruch ‘Justice and equity in international relations’ in Norman Bentwich, Antonio Sanchez de Bustamante y Sirven, Donald A MacLean et al (eds) Justice and Equity in the International Sphere (1936) 2.
16 George B Adams ‘The origin of English equity’ (1916) XVI (2) Columbia Law Review 88.
22 cases with no clear distinction between them. The two systems – equity and common law – were applied together by the same institutions and to serve the same functions.17
The use of equity was an effort by the Lord Chancellor to guarantee that justice was done where common law had proven inadequate.18 The application for equity was usually in the form of a
‘petition for grace’ requesting the king to intervene in order to obtain justice where it seems the common law is lacking.19 In discharging this application, Lord Woolsey explains that ‘the king ought to… mitigate the rigour of the law, where conscience hath the most force; therefore, in his royal place of equal justice, he hath constitute a chancellor, an officer to execute justice with clemency, where conscience is opposed by the rigour of law.’20 In other words, his duty is to ensure that the rigour of the law is mitigated.
By the fourteenth century, legal claims under the common law system fell into either of three jurisdictions: the King’s Bench, the Court of Common Pleas and the Court of Exchequer.21 This led to the increasing compartmentalization of common law as the courts relied more on positive law. Equity only became a resort when neither of these three jurisdictions could provide an adequate, timely and effective remedy to a litigant.22 Equity was the extraordinary relief available to petitioners, and the king directed all such petitions to the chancellor.
The court of equity was eventually established and given jurisdiction over equitable claims.23 By the middle of the nineteenth century, equity was applied by a separate court with its own rules of procedure and substantive principles. It applied these rules in its attempt to bring about justice where the common law had proven unjust.24
The evolution of equity was also assisted by the practice of stare decisis which requires that court rulings should be consistent and predictable.25 The use of stare decisis assisted in realizing equity as part of the legal system. In doing this, stare decisis also addressed a major shortcoming of equity; its vulnerability to the impulse of the decision-maker.
17 Ibid at 89.
18 Richard Hedlund ‘The theological foundations of equity’s conscience’ (2015) 4 Oxford Journal of Law and Religion 119, 123.
19 Adams (n16 above) 91.
20 William Holdsworth A History of English Law 3 ed (1945) 219.
21 George T Bispham The Principles of Equity: A Treatise on the System of Justice Administered in Courts of Chancery (1874) 4; Adams (n16 above) 95.
22 Rossi (n6 above) 33-34.
23 Ibid. See also Hedlund (n18 above) 123-124.
24 Rossi (n6 above) 34.
25 Ibid at 36.
23 However, there was a separation in the administration of equity and the common law. This separation gave birth to arguments that equity was not within the ambits of the law and its application was regarded as a dependence on principles that were outside the law.26 At best, equity was a moral claim. The notion that reliance on equity is extrajudicial continues to linger and, as will be seen below, this has affected the adoption of the principle within the international legal system.
Nonetheless, equity became a mechanism for harmonizing legal certainty, which is a necessity for social cohesion, and justice which may otherwise be impossible due to the quest for certainty.27 In other words, equity was used to enhance justice where the desire for legal certainty may have made justice elusive. Equity rectifies situations that would have led to injustice or some form of lack of fairness as a result of the rigidity of the law and its inability to be adjusted to each case.28 While common law takes an approach which decides rights and remedies based on a strict interpretation of the law, equity adopts a more extensive interpretation of legal rights and remedies. It considers the special situation of the litigants and the nature of their relationship in deciding the applicable remedies.
Within the different legal systems, Roman, civil or common law systems, equity was recognized as a tool for mitigating the rigidity of the law so as to ensure justice in individual decisions. The judiciary and parties to a suit often depended on equitable principles whenever it seemed that the provisions of the law were inadequate to do justice to their situation. The use of equity was not to depart from or diminish the relevance of existing law and the legal rights protected under these laws. Instead, the practice of equity was to guarantee that established laws are not hindrances to the attainment of justice in particular cases. Equity became the tool for harmonising the need for legal certainty and the desire for justice.