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[MUSIC]. As you might remember from unit one,
professor [UNKNOWN] drew our attention to the idea of common law.
Professor [UNKNOWN] discussed the common law in its historical context.
I want to pick up on some of these themes at this point, and draw our attention
back to the idea of common law. Now, I think we have to stress that we
can use the term common law in a number of different contexts.
It means something slightly different in each context.
First of all then, we can make a distinction between common law and
statue. I won't say anything about this in detail
at this point as I will pick up on it in a later lecture.
We can also make a distinction between common law and equity.
Now, I do want to talk about this distinction.
But there is another important distinction that I will mention first and
discuss first before turning to the distinction between common law and
equity. And the distinction that I want to
mention, look at in a little detail, is the distinction between common law and
civil law. Now, let me spend a little bit of time on
this before turning to common law and equity.
If we make a distinction between common law and civil law, we're actually really
making a distinction between what we could call two different legal families.
Now, the history of common law, as you are aware, is related and linked to the
history of the United Kingdom. Common law developed distinctly in a
different from civil law, which tends to be associated with traditions of European
legal thinking. I think one can make to a mistake in
stressing too hard and fast a difference between common law and civil law.
Because they are although they have their differences, their distinctions.
There are ideas certainly moving between civil law and common law.
Especially, if one goes back to the past of civil law, which is Roman law.
Roman law has a massive influence on common law.
In fact, the terms that we use, for instance, are the term [UNKNOWN], which
means property is, or things strictly, we use it in the law of property.
And is drawn from Latin. It's a Latin term, it's drawn from Roman
law. Civil law has a strong relationship to
Roman law. The common law, by virtue of perhaps of
it's it's island home, and has this distinction from the civil law, it's a
different kind of historical development. But we could push it further than this.
Civil law and common law, most commentators, most people writing about
these different legal traditions, would make a number of distinctions that I just
want to briefly draw our attention to. One way of illustrating this distinction,
and I stress that this is really a snapshot view of this, this matter, is a
statement from Chief Justice Shaw. Actually, an American case, but needn't
worry us too much at the moment. called Norway Plains and Boston Main
Railroad. And it's Lord Justice, Chief Justice
Shaw, talking about the nature of the common law.
And then, I want to just compare what Chief Justice Shaw says, and to an
understanding of civil law in the civil law tradition.
So, this is the quote from Chief Justice Shaw.
So, one of the great merits and advantages of the common law that instead
of a series of detailed practical rules, established by positive provisions.
And adapted to the precise circumstances of particular cases which would become
obsolete and fail when the practice and course of business to which they apply
should cease or change. The common law consists of a few broad
and comprehensive principles founded on reason, natural justice and enlightened
public policy. So, what Chief Justice Shaw is drawing
our attention to here is that the common law characterizes the common law as
consisting of a series of practical principles which are informed by certain
values. And he's comparing this to essentially a
code. In other words, the fundamental idea
behind civil law. Now, for instance, if we Look at the
French legal tradition, it's based on the Napoleonic Code.
The Code is central to the law and cases serve to, if you like elaborate the
fundamental principles of the code. We go back to what Chief Justice Shaw is
saying. Then, in common law we obviously don't
have this reference to a fundamental code, we have this more, well in Chief
Justice Shaw's opinion more pragmatic, practical, possibly even flexible
development of legal principles on a case by case basis.
This of course take us back to thinking about the development on precedent.
The, I don't really want to say, well look, we can sketch out advantages and
disadvantages of these two traditions. I think that's too simplistic.
As I say, I think it's probably more correct to see them as influences of each
other as going back to fundamental Roman law concepts.
And I think there has been an on-running debate which is probably about a thousand
years old. And perhaps a little less of the
different ways in which civil law and common law work.
Now, the whole point of this discussion really is just to stress that we're here
talking about legal families. I suppose like any family there are
shared relations. So, civil law and common law are
different ways of doing law. Different national traditions, different
super national traditions. There are different claims by, made by
lawyers and commentators within each tradition.
But we can perhaps see them as emphasizing the way that principles and
rules work in slightly different ways. With civil law stressing a code with
precedent forming or rather limited part or there are differences between
different European civilly in traditions. And the common law where binding
precedent is much more fundamental. And there is no underlying code.
That would be then the fundamental distinction between common law in legal
family, and civil law. The point that I want to turn my
attention to now though, is another distinction.
The distinction between common law and equity.
The best way into this distinction is, first of all, primarily, I think,
historical and institutional. And again, I want to just refresh your
memory of certain themes that Professor [UNKNOWN] was talking about.
We need to go back in time to understand the historical routes.
the institutional routes of the distinction between common law and
equity. Or, in other words, the distinction
between common law and equitable courts. In other words, distinction between
common law and equitable principles. We need to back in time to the medieval
period, in fact, to the reign of Edward I.
So, the 1200s and the very early 1300s. Now, I said a moment ago that this
distinction is institutional. The distinction between equity and common
law is institutional. It relates to institutions.
And this is one way I think, of hanging onto the following point.
Certain courts of law, we could call Common Law courts, they enforce the
common law. Over time, historically, and as I say, if
we go back to the early Medieval period. And, the common law courts develop
various writs, or causes of action, technical terms, which would allow people
to obtain remedies for various wrongs that they have suffered.
So, you would go to a common law court, you would say I've been wronged due to
serve a writ on the court. And the court would hopefully give you a
remedy. Now, begs the obvious question.
What would happen if the common law court didn't give you a remedy?
In other words, if a writ cause of action didn't exist?
Well, one way around this, and again this developed as a historical practice, would
be to petition the King. Why the King?
Well, the King in the feudal system, in the medieval system, is the font of
justice. So, if one cannot obtain justice in the
common law courts, one would essentially petition the King.
Requiring the King or requesting the King to grant you justice.
Now, the King tended to delegate this function, adhere in petitions, to the
Lord Chancellor. Now, the Lord Chancellor was a member of
the, what was called the king's council. During the reign of Edward the II, so
we're now in the mid 14th century, these are practices that develop over quite
time frame, as you might be aware. The Lord Chancellor began to formalize
the way in which he heard pleas. So, legal historians who've studied these
matters would date the beginnings of the court of Chancellery.
In other words, an equitable court linked to the Lord Chancellor.
But he presided over by the Lord Chancellor to this very period to the
14th century. Although, it was not until somewhat later
under the reign of Richard the II that we could perhaps really properly speak of
the Court of Chancery coming into its own as a distinct court.
So, the fundamental ideas that we've got here is that equity, the roots of equity
are historical. They lie in the limitations of the courts
of common law, not recognizing certain writs, certain causes of action.
And the historical practice that really begins with the king delegating the
hearing of petitions to the lord chancellor.
And the lord chancellor overtime, different lord chancellors, developing
the, the role of the court of chancellory, which hears this pleas.
In other words, hears pleas for remedies which the common law courts can't grant.
Now, these are complex matters, so I really want to do it and illustrate what
I'm talking about by means on an example. There's a little bit of back story that I
need to tell you and that relates to the lord chancellor.
Now, the lord chancellor was educated in canon law, the law of the Christian
church. In other words, not strictly the common
law, differences of principles. The body of principles, the, the
theological knowledge if you like, that the Lord Chancellor would bring to the
hearing of these petitions. Would thus have, this was influenced by
certain principles of one finds ecclesiastical law, law of Christian
church, rather than in the body of common law.
Now, what is also perhaps interesting to bear in mind here is that certain
scholars have argued that there is in fact an influence of Islamic law on the
development of equity. In particular, the next concept that I'm
going to talk about, which is a concept to legal vehicle, a legal relationship,
developed exclusively by the court of chancellery.
And that is the trust legal scholars have argued that the trust is related to a
concept in Islamic law called the [UNKNOWN].
I'm probably pronouncing that wrong. But it would suggest, again, that rather
than seeing legal traditions as, as linked, as delinked from other legal
traditions what we're seeing is, is mutual influence.
So, the trust, let me try and explain the trust.
The key concept line between the trust, and indeed a key concept for equity, is
the idea of conscience. Now, conscience is of course of moral
term, isn't it? One can talk of being bound in
conscience, for instance, if you make a promise I might say that you are bound in
conscience to keep that promise. We can clearly see that the idea of
conscience is both moral term and in a sense a term that relates to certain
religious or theological ideas. So, I think it's fair to say, that
conscience and the role that conscience plays in equity, suggests these
historical roots. If we look at the modern law of equity, I
think these ideas are still there. But I don't think I would make any claim
if you liked to their theological provenance in contemporary terms.
But let me just try and illustrate how works conscience works in the court of
equity and how it links to the idea where trust which as I said is particular to
the Court of Chancery. So, it's equitable idea.
And again, let me do this by virtue and example.
So, let's pretend we're back in the medieval times and let's try to recreate
some historical context. Let's say I'm going off on a crusade, I'm
a bit of a rich land owner, I'm going off on a crusade.
Whilst I'm off on a crusade, who knows if I'll come back or not, I want my lands,
my estates to be looked after on behalf of my family.
So, I say to my best friend, let's say my best friend is called T I say to T look
I"m going away for awhile I want you to look after my property.
But I want you to be looking after it on behalf of my family, I want them to have
the benefit of the rents of the fields or what have you.
So, I'm off then, I disappear, let's say I'm gone for ten years.
During this time, T is legally in charge of my land.
We could say that T has control of my land.
That T has legal title to my land. What happens, let's say, if T decides to
keep that land for himself? Remember, I said to him, you're looking
after this land on behalf of my family. But T proves to be a false friend and
keeps the land for himself. Now, obviously I would be somewhat upset
by that. As indeed would my family.
The trouble is, and this goes back to the story I was telling a moment ago.
If my family go to the, the, to a common law court and say T has taken this land,
the common law court says, well wait a minute T had control of that land.
T is the owner of that land, what are you talking about?
Now, this is clearly a problem, isn't it? And this would be one of the petitions
that might end up before the Lord Chancellor.
So, how would the Lord Chancellor deal with this?
Clearly, if T has made a promise to me that he is looking after my land on
behalf of my family, T is bound in conscience to look after that land not to
claim it as his own. In other words, the equitable courts
using the idea of conscience begin to develop a legal relationship which we
would call the relationship of trust. Which the Common Law courts simply
couldn't understand. At Common Law you either own something or
you don't own something. At Equity, you can own something to the
extent that you are looking after it on behalf of somebody else.
And let's say that those people for whom you are looking after the property are
the beneficiaries. In other words, the language develops of
trustee and beneficiary. The beneficiaris have certain equitable
rights against the trustee, to allow the trustee to enforce that trust.
And I'm hoping that you can appreciate that lying behind all these ideas, is the
idea of conscience. In other words, the conscience of the
trustee, the person who is said that he will look after that property for the
beneficiary. It would be wrong, would it not, for the
trustee to claim the land, the land as his or her own.
That's largely historical sketch, and the last thing that I want to do is try and
return to that point and build it if you like in relation to how these ideas might
work in contemporary law, in modern law. Now, as I've said, I think it would be
wrong to say that the idea of conscious, the principle of conscious.
And modern equity is directly traceable back to a theological or moral idea.
In other words, he is the legal owner of that property.
the mortgage. Now, here's the problem.
Is to say, what is the relationship between a property owner who as far as
And somebody else who, for instance, does work on that property.
Now, the facts of Lloyds Bank and Rossett are rather complicated.
ultimately got no share in the property. But it begs the, the, the way the case
In other words, how would a non-property owning spouse or indeed a co-habittee
The fundamental idea in Lloyds Bank and Rossett is if the property owning spouse
That on the basis of that representation, that promise, if you like, the
Let's say I move in with my girlfriend and I say, I'm the legal owner of the
share in this property if you help me with the renovations.
apart. And the question rises, what interest
In other words, she has no interest at all.
have to look and see if there was an agreement that we had made.
value of the work that you have done upon it.
And giving the non-property owning spouse, the girlfriend in the example, an
That this is based on my promises, based on my representation to my girlfriend,
me to renege on a promise. Or for me not to be held by the law to
Problem, let's say, of two co-habittees. And, and their relation, the, the
that that principle of equity which is based on conscience give the non-property
medieval world that we started with and shows how those historical concepts are
[MUSIC].