Category: Common Law

The common law theory is based on ‘what the law is’ in a certain situation that is followed as a rule in later decisions by the court involving similar material facts through the doctrine of precedent also known as stare decisis.

The first point of discussion I would like to point out is whether judges make law through interpretation. In the common law system, the judge’s task is to discover and find the law, meaning judges should verify facts, locate relevant statutes and regulations, and develop general rules from precedent in order to apply them to future cases. But what happens if the subject is not regulated by a “clear precedent”? Although we’re heading towards an increase of case law (which itself makes harder for judges to extract a single general rule) and this kind of situation might be very few these days, judges commonly turn to a principle of justice which express moral, social and political considerations, meaning reason plays an important role. And what is “just” and “fair” is never very unanimous, is it?

For this matter I think that a good example is Thomas v. Winchester and the McPherson v. Buick Motor Co cases. In the first case the Court held that the manufacturer of the negligently made product is liable only to the party whom he is in privity with, unless the product is a dangerous instrument that is likely to cause death or serious bodily injury like poison. Judge Cardozo in the latter case reformulated the issue. The Judge turns from ‘whether a product is imminently dangerous’ to ‘whether a product is dangerous if negligently made’. The Judge extends the principle not only to things which in their nature are calculated to do harm like poisons and weapons but also to things that their nature is such that it is reasonably certain that when negligently made may cause death or serious bodily injury which makes them a thing of danger, like the scaffold in Devlin v. Smith and the coffee urn in Statler v. Ray Mfg Co. And this is one example of the many where judges have “made law”.

Concerning Constitutional common law, I think first it is important to make clear that the Constitution is subject to evolution. It is not static. It evolves in order to address social changes. The question is how it evolves. And the answer might be through interpretation. Judicial interpretation. The judges not only determine the meaning of the constitutional provisions with respect for the intent of the Founders of the Constitution, but also use their imagination and creativity. A good example is Lochner v. New York1. A New York law required that bakery employees hours had to be under 10h a day and 60h a week. The Supreme Court held that this law violated the 14th’s Amendment’s Due Process Clause_, which in its view contained the right of “freedom of contract” or an employer’s right to make a contract with his employee without governmental interference. Although nowhere in the Constitution this “freedom of contract” is mentioned.

The Court further argued that this clause is not only a procedural guarantee that limit the means by which the State may deprive a person of their life, liberty or property but also a substantive limitation to the types of activities and rights that the government may regulate by assuming them to be fundamental – Substantive Due Process Clause. After this case the Court would strike down laws regulating wages, hours and other conditions of employment under Lochner’s conception of the 14th Amendment. Sixty eight years later the freedom of contract gives place to another right that is nowhere mentioned in the Constitution – the right to privacy. Let’s see Roe v. Wade2.

The issue here is the constitutionality of laws that criminalized or restricted abortions. The Court held that abortion was a fundamental right protected by the 14th Amendment Due Process Clause which contained the right to privacy. While the Court recognized that a woman’s right to choose whether or not to terminate her pregnancy is protected, it also recognized the competing interests of protecting a woman’s health and the “potentiality of human life”, which is the government duty to protect their citizens. But does the fetus qualify for a person to fall under constitutional protection? To answer this question the Court created the trimester framework. During the first trimester, when abortion was considered a safer procedure than childbirth, the Court left the decision to abort exclusively to the mother and her physician. For the second trimester, the Court decided that the state could regulate abortion only in order to protect the mother’s health. And finally, during the third trimester, when the fetus was considered “viable”, meaning that could survive on its own outside the mother’s womb, the state could regulate abortion and even forbid abortion, except when it would be necessary to protect the woman’s health.

To make my point I think it is important to refer the dissenting opinion of Justice White on this case: “I find nothing in the language or history of the Constitution to support the Court’s judgement. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its actions, invests that right with sufficient substance to override most existing state abortion statutes”.

The second point of discussion is how judges actually do this process of interpretation.

In common law, judges follow the precedent rule. But how? Eisenberg in his book3 points two different approaches – the adopted rule approach and the result based approach. In his words, “under the adopted rule approach, the rule for which a precedent stands is the rule the precedent explicitly adopted(…) and “under the result based approach, the rule for which a precedent stands is whatever rule that was strictly necessary, on the facts of the decision, to reach the result”. One example of the “result based” approach would be the decision in MacPherson v. Buick Motor Co – Judge Cardozo instead of overruling the precedent in Thomas v. Winchester, reformulated the rule.

The creativity I mentioned before in constitutional common law interpretation is reflected by the development of different levels of scrutiny – rational basis, intermediate and strict. Each level of scrutiny has its own methods to assess the constitutionality of the law in question.

According to the minimal scrutiny or rational-basis scrutiny the law will be struck down unless there can be a reasonable connection between the ends and means of the law. On the opposite, in the strict scrutiny method the law will be struck down unless the government can prove that the legislation is tailored to achieve a compelling state interest.

And at last the intermediate scrutiny lies in between both.

To give examples: in Lawrence v. Texas4 the Court held sodomy law unconstitutional on the grounds of substantive Due Process Clause, making same sex sexual activity legal. The Court not once describes homosexual sodomy as a “fundamental right”, meaning it did not apply the strict scrutiny standard. Instead, Justice Scalia states that the majority applied an “unheard-of form of rational basis review”. The Court in this case didn’t specify the scrutiny applied and lower courts have read the case differently on the question of scrutiny.

One example of clear strict scrutiny would be Griswold v. Connecticut5. This case involved a Connecticut law that criminalized the use of “any drug, medical article or instrument for the purpose of preventing contraception”. The Court held the statute to be unconstitutional on the grounds that it violated the “right to marital privacy” and could not be enforced against married couples. This right in the Court’s opinion falls under the right to privacy protected by the 14th Amendment’s Due Process Clause.

Because a married couple’s use of contraception constitutes a “fundamental” right, meaning it cannot be denied without violating principles of justice and liberty, Connecticut must prove to the Court its law is “compelling” and “absolutely necessary” to overcome that right. Not being able to do this, the law is struck down.

The third and last point I want to refer is in what way common law and constitutional common law connect. To give an example, if judges adopt the precedent rule approach for constitutional adjudication, the decision in Dred Scott v. Sandford6 – Dred Scott was a slave who sought his freedom through the American legal system. The United States Supreme Court denied his plea, determining that no Negro was or could ever be considered a citizen – should have been followed and racial segregation reality. And that is not what happened, since Brown v. Board of Education followed.

Sometimes the precedent rule method or also a group of precedents are not enough for the judge’s decision.

1. Equity was created to supplement not to supplant the common law. Do you agree?

The issue in question is whether equity came to take common law’s place or assist the common law in the judicial system. To understand this, we need to look at the creation of equity and how it came to affect the common law system.

In the Earl of Oxford Case (1615) 1 Rep CH 1at 6, the common law had awarded a judgment against a defendant to an action. The defendant petitioned the Chancery on the basis that the judgment was obtained by fraud. The essence of the petition was to prevent the enforcement of the judgment against the defendant. Chief Justice Coke immediately indicted the defendant but Lord Ellesmere issued an injunction to restrain the plaintiff from enforcing the judgment. This caused common law and chancery to clash.

Lord Ellesmere summarized the rationale for the chancery as; “men’s actions are so diverse and infinite that it is impossible to make any general rule which may aptly meet with every particular and not fail in some circumstances. The office of the Chancellor is to correct men’s consciences for frauds, breaches of trusts, wrong and oppressions of what nature soever they are, and so soften and mollify the extremity of law.”

This decision challenged the power of the common law courts, and Lord Chief Justice Sir Edward Coke of the King’s Bench responded by declaring that the defendant acted unlawfully by petitioning the Chancellor. The matter was resolved when the King, James I, issued a decree stating that where a party had a good argument in equity, they would not be left to languish at common law.

Section 49 of the Supreme Court Act 1981 provides that; “subject to the provisions of this or any other Act, every court exercising jurisdiction in England or Wales in any civil cause or matter shall continue to administer law and equity on the basis that, wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.”

Common law was prevalent in England way before equity was established. It had three courts which were; King’s Bench, Common Pleas, and Exchequer. For a person’s grievances to be heard, he had to be issued with a writ disclosing a cause of action. The courts worked through precedents and plaintiffs were often not able to obtain a remedy in common law that they had a right to.

Equity refers to those principles that were initially created in the English High Court of Chancery. They were developed in response to the rigid technical procedures of the common law. The Chancellor gave remedies where the Common law did not provide for one. The role of equity was established by the decision in the Earl of Oxford’s Case, but still, equity occupied a separate jurisdiction to the common law.

Equity aimed in fixing and stepping up in common law shortcomings which were; the available remedies were inadequate and could not satisfy the requirements of justice in particular cases, the justice was slow and the courts were corrupt and there were limited remedies.

Equity was developed to cover up the deficiencies of common law and to bring about justice. Hence it can be seen to be supplementing the common law in essence filling in the gaps left by the common law.

After the Earl of Oxford case, equitable rules were thought to be more systematized, and rigid and cases of equity began to be reported.[footnoteRef:1] Equity’s growth posed threats to the common law system and equity had its way till 1873 when acts were put in place to establish rules and it was regulated. [1: Richard Clements & Ademola Abass, Equity and Trusts, p.g. 9]

The Judicature Act 1873 established a Supreme Court replacing the courts of Chancery. It is argued whether the Acts fused rules of Equity and common law so that they became one or that they retained their identity but got administered by a single court. Section 49 of the Supreme Court Act backs up the fact that the rules of equity and common law were fused by administration.

Lord Diplock “the innate conservations of English lawyers may have made them slow to recognize that by the Judicature Act 1873 the two systems of substantive and adjectival law formally administered by courts of law and equity have surely mingled now.”

Lord Denning MR “over 100 years have passed since the supreme court of judicature act 1873 have flown together and combined so as to be indistinguishable the one from another. We no longer have to ask ourselves what we should do now so as to ensure fair dealings between parties. The question must be asked in each case as it arises for decision and then from case to case we shall build up a series of precedents to guide those who come after.”

From the two arguments, it is clear that common law and equity law have to some extent mingled to seemingly work together towards justice and equity has neither tried to outdo or replace the common law.

In conclusion, we argue that equity was created to supplement the law since it fixed all the niches that common law left out

Discuss the genesis and evolution of equity noting any relevant cases and statutory provisions.

Equity can be defined as the principles that were initially created in the high court of chancery that were developed in response to the technical procedures of common law.

After the Norman conquest of England in 1066 by William duke of Normandy, a systematic and orderly form of government and law was introduced. It was referred to as common law. It emanated from the common cultures and practices of the people of England. There were three distinct courts namely: King’s Bench, common bench /court of common pleas, and the exchequer that operated independently and administered the common law. The exchequer performed more than just judicial functions, it served as a government office, a modern-day treasury. This court was headed by a chancellor not a judge. The chancellor oversaw many departmental works such as issuing of writs (sealed with the king’s seal) for the commencement of actions in the courts of law.

Common law had the following shortcomings:

1. The available remedies were inadequate and could not satisfy the requirements of justice in particular cases
2. Delay of justice since the courts were corrupt
3. Limited remedies

By issuing new writs and varying existing ones the chancellor was able to develop common law. His chief concern was substantial justice. He granted or withheld relief not based on precedents but according to his own sense of justice. Reliefs adapted to meet particular justice. Writs issued by chancellor were subject to be quashed by the common law courts. Initially, dissatisfied claimants would go to the king to seek justice if they the court’s decision, the judicial petitions were so many by the end of the 13th century that it had to involve the chancellor whom acted as the king’s prime minister. The chancellor was involved in the king’s council and decided on certain cases thus the courts of chancery evolved. The Chancery evolved into a judicial body known as the Court of Chancery until by the end of the 15th century the judicial power of the Chancery was fully recognized. The Court of Chancery was in effect developed as a court of conscience to counteract the defects that existed in the common law system. The rules of equity varied from Chancellor to Chancellor until the end of the 16th century.

As equity developed it began to conflict with common law. Litigants used equity to their advantage often seeking an equitable injunction prohibiting the enforcement of a common law order. If a common law judgment was enforced in disobedience of a common injunction then the person enforcing the judgment could face imprisonment. S25 (2) of the Judicature Act “where there is conflict between common law and equity, the equity should prevail. In the Earl of Oxford’s Case: – The Chancellor issued a common injunction to prevent the enforcement of a common law judgment which was alleged to be obtained by fraud. – King James I ruled in favor of the Chancellor and established that in cases of conflict, the rules of equity shall prevail. This case resulted from a clash of equity and common law courts to a greater extent.

Lord Ellesmere pointed out in the above case why there was a need for a Chancery. He stated ‘Men’s actions are so diverse and infinite that it is impossible to make any general law which may aptly meet with every particular and not fail in some circumstances. The office of the Chancellor is to correct men’s consciences for frauds, breaches of trust, wrongs, and oppression of what nature soever they be, and to soften and mollify the extremity of law.’

By the 17th century, lawyers were appointed to the office of the chancellor and by the 19th century, the court of chancery became the court of equity. Equity and common law were later fused by the Judicature acts 1873-1875

Discuss whether members will come to the decision that the fusion debate is of any relevance

This view states that the Judicature Act 1873 fused, and codifies both common law and equity into one subject. Lord Diplock “the innate conservations of English lawyers may have made them slow to recognize that by the Judicature Act 1873 the two systems of substantive and adjectival law formally administered by courts of law and equity have surely mingled now.”

Lord Denning MR “over 100 years have passed since the supreme court of judicature act 1873 have flown together and combined so as to be indistinguishable the one from another. We no longer have to ask ourselves what we should do now so as to ensure fair dealings between parties. The question must be asked in each case as it arises for decision and then from case to case we shall build up a series of precedents to guide those who come after.”

From the two arguments, it is clear that common law and equity law have to some extent mingled to seemingly work together towards justice. To understand the fusion theory clearer it is important to keep in mind the equity law was developed to cover up the deficiencies of common law and to bring about substantial justice. The two laws, therefore, had different functions which were seemingly mingled from the justice system. There are arguments that the Judicature Act 1873 merely consolidated the administration of the two laws. S25 (2) of the act “where there is conflict between common law and equity, equity should prevail. In the Earl of Oxford’s Case: – The Chancellor issued a common injunction to prevent the enforcement of a common law judgment which was alleged to be obtained by fraud. – King James I ruled in favor of the Chancellor and established that in cases of conflict, the rules of equity shall prevail. This case resulted from clash of equity and common law courts to a greater extent.

Some of the difficulties caused by the two courts working separately and in conflict included: Common law courts could not recognize equitable rights, titles & interests (Castlereagh v Davies-Roe) subject to some limited exceptions where equitable claims are subject to a claim in tort or k (Roberston v Wait), Equity courts had no power to award disputed rights, no power existed to allow the transfer of cases from one jurisdiction to another, therefore there was a risk of commencing proceedings in the wrong court (Carter v Smith). In light of the above conflicts between the two legal systems, there was an urgent need for a solution which was marked by the introduction of the Judicature Acts 1873-1875 that established one Supreme Court of Judicature to replace the Court of Chancery & common law courts. The Supreme Court consisted of a High Court of Justice (divided into 5 divisions example the Chancery Court and Queen’s Bench) & a Court of Appeal (to hear appeals from all 5 divisions). This resulted in the fusion of the administration of common law and equity

In Walsh v Lonsdale the court submitted that to talk of fusion of law and equity is misleading. This assertion is substituted by virtue of the Judicature Act 1873, where it was the administration of common law and equity that was fused into a court not the substantive laws themselves. They were not to be fused but rather run side to side in the court. Sommers J in Elders Pastoral LTD v Bank of New Zealand, “neither law nor equity is now stifled by its own origin and the fact that both are administered by one court has inevitably meant that each has borrowed from the other in furthering the harmonious development of the law as a whole.”

To explain the evolution of Equity with regard to cases and statutes and to discuss whether the argument over the doctrine of fusion is relevant today.

Introduction

The law is a body of rules that applies to certain defined circumstances and situations and does not provide for changes and variations presented by unprecedented circumstances. This unpredictability of the future may at times render the law defective in dealing with new occurrences and strict legal enforcement thereof would animate injustice- this being as a result of the general nature of the law-. Equity, of necessity, comes in to mitigate the rigidity of the application of the law.

To properly understand this doctrine of equity, it is proper at this point to analyze its historical foundations

Medieval origins

Equity has developed over a long period of time, didn’t start off clean but it has grown from this and that and has become interwoven to build what is called Equity. 1066 AD was when the common law was rigid and the King had a rigid hold on the country and the king was accessible as a person of administration too and the problem with the common law system was that it was very strict about what kinds of actions one could bring and the remedy was always pecuniary. The three common law courts that administered justice were;

• a) The court of Common pleas/ Common Bench- This court had the power to hear and determine civil cases brought by one individual against another.
• b) The King’s Bench- This court had jurisdiction to hear matters in which the king had interest to with murders, crimes, et al.
• c) The Court of Exchequer- this court dealt with matters involving royal revenue, for instance, taxes and other state dues.

Under the Common Law system, the operative was the writ system in which one could only get redress for their grievances if there was a writ disclosing the course of action. The latinate tag Ubi us, ibi remedium- where there is a writ, there is a remedy was thusly imperial. A writ here refers to a form of written command in the name of the crown to act or abstain from acting in a particular way.

The middle ages

The Lord Chancellor [currently would be the Prime Minister] was an important figure in the administration of Justice. He was charged with issuing writs- necessary to start any action in Common law under the Royal Seal. At this point, there was no need for equity as many judges had been trained on Canon Law principles and thus exercised equity willingly on matters before them. This is because most of them were ecumenical. They would apply the principles of conscience, religion, good faith, morality et al in their determinations. With the passage of time, however, new judges were appointed who were trained lawyers and were very conservative about the application of the law therefore they adopted a conservative approach and sought to enforce the law as is. Their first action was to strike any new writs that were issued by the Chancery and this action was cemented by the provisions of Oxford 1258, which required the Chancellor to get approval for any new writs by the King in Counsel.

The Statute of Westminster 1 1285 tried to rectify this by giving the chancery power to modify existing writs for new cases. The Common Law judges continued in their affair to strain justice by canceling and invalidating new writs. Many people, therefore, lacked redress for their claims.

Towards the end of the 13th Century, the inadequacy of the common law courts was glaring and thus individuals began petitioning the king asking that justice be done and remedy be ordered. It was considered that a residuum of justice resided in the King and petitions were directed into this as a last resort if the common law had not provided justice.

Initially, the King heard petitions in counsel but subsequently transferred them to the chancery owing to their overwhelming volume. The Chancellor granted relief in the name of the King and would use certain principles to intervene;

• a) Equity acts in personam- the common law judges only granted damages but equity acted against a person ordering him to do something e.g injunctions.
• b) Equitable remedies are discretionary- an award in equity is on the court’s discretion
• c) The bona fide purchaser- whereas a legal right is enforceable against anyone in the world, an equitable right is enforceable against anyone except a bona fide purchaser.

The 15th century

By mid -the 14th century, the Court of Chancery was independent of the common law and their jurisdiction was recognized with the enforcement of uses [trusts], specific performance contracts, granting relief on fraud and mistakes as well as injunctions. The main focus was unconscionable behavior. The Court of Chancery’s function was essentially use of the king’s prerogative to interfere with the administration of the law in the interest of justice where conscience rendered such interference necessary. The chancellor looked to the terms of the agreements as well as whether the petitioner had fallen foul of fraud or breach of confidence.

The courts of equity as they developed became vague and unclear. Judges based their decisions on conscience and there lacked a system of decision-making based on precedent. The decisions of the courts of equity, therefore, were random and very unpredictable.

In 1675, Lord Nottingham was appointed Chancellor and began the systemization of Equity. He set down principles upon which equity would operate and thus moving away from the error of idiosyncratic and unpredictable decisions. Lord Hardwicke, appointed in 1737 laid down the general principles under which Equity would operate. Lord Eldon –appointed in 1801- consolidated all principles that had been previously developed by his predecessors.

It would appear that at this point, Equity was taking on the rigidity of Common law courts. In the case of Gee v Pritchard, Lord Eldon observed;

‘’…Nothing would inflict on me greater pain in quitting this place than the recollection that I had done nothing to justify the reproach that the equity of this court varies like the Chancellor’s foot…’’

In Re Telescritor Syndicate Ltd[footnoteRef:2] Buckley J declared that ‘’…this court is not a court of conscience…’’. It would seem that the court was now insistent on the provisions and procedures of law and necessarily guided by the whims of the presiding judge. Lord Eldon in the case of Lord Dudley v Lady Dudley guided thusly;

‘’…Equity is no part of the law but a moral virtue which qualifies, moderates, and reforms the rigor, harshness, and edge of the law and also assists the law where it is weak…’’

In Re Diplock[footnoteRef:4], the court gave direction to the effect that;

‘’…if the claim being made is to exist, ‘it must be shown to have an ancestry founded in history and in the practice and precedents of the courts administering the jurisdiction of equity. It is not sufficient that because we may think that the ‘justice’ of the present requires it, we should invent such jurisdiction for the first time.’’

As of 1948, the court was saying that they were not going to invent jurisdiction and it would therefore seem that the courts of equity took on the nature of common law courts as regards form. For example, an action brought in the courts of equity must have had foundation in the law; either in precedents or statutes, or writs. The decisions of equity were how rigid and predictable; much like the common law system.

The conflict between the courts

There being two systems in place, the Common Law Courts and the courts of Equity were involved in a supremacy battle with both systems seeking to assume preeminence over the other. The common law courts would nullify decisions by the courts of equity while the latter would grant injunctions against decisions made by common law courts. The dispute between the two was so intense that reforms had to be made within the legal system. Some of the reforms made were mitigated by enactment of statutes for instance the

• Common Law Procedure Act, 1854- which gave common law courts a limited power of granting injunction
• The Chancery Amendment Act, 1858 [Lord Cairns’ Act]- which gave the court of chancery power to award damages In addition to injunctions and specific performance
• The Decision in Earl of Oxford’s Case [1615]- This case was brought before a common law court before Chief Justice Coke. His judgment was allegedly obtained by fraud and the parties moved to the Lord Chancellor [Lord Ellesmere] who issued a common injunction prohibiting the enforcement of the Common law order. The courts were locked in a stalemate and the matter was referred to the Attorney General, Sir Francis Bacon. By authority of King James I, Sir Francis upheld the common injunction and concluded; ‘’…in the event of a conflict between common law and equity, equity will always prevail…’’.
• The Judicature Act, 1873, codified the decision of the king seemingly making Common law courts look redundant.

The Judicature Act merged the two courts to come up with one new court called the High Court of Justice which would deal with both common law and equitable matters. The High Court of Justice was divided into 5 divisions with a general Court of Appeal to hear all the appeals. The five divisions were;

• Queen’s Bench Division
• Common Pleas Division
• Exchequer Division
• Chancery Division
• Probate, Divorce, and Admiralty division

The new High Court was given the power to administer equitable remedies and equitable defenses could be pleaded in any action. All branches of the court could recognize equitable interests and rights.

The doctrine of fusion and its relevance in the present age

As we have earlier indicated in this paper, the law as we know it today has evolved a long way. Initially, common law reigned supreme. Its rigidity, however, saw the emergence of equity under the Lord Chancellor of England[footnoteRef:5]. Thus, two legal systems and two parallel court systems emerged; both seeking supremacy over the other. This supremacy battle was solved by King James I in 1615, stating by decree that in the event of a dispute between common law and equity, equity would always prevail[footnoteRef:6]. This was later codified into statute by the Judicature Act of 1873.

The Act further went on to merge the two parallel courts(courts of equity and courts of common law) into one. There has been, however, a long-standing debate by scholars and jurists alike. A debate seeking to find out whether;

• The substantive rules of Equity and common law were merged and if so to what extent( fusionist point of view)
• Or whether the fusion of equity and common law only dealt with administrative procedure thus declaring the notion of fusion a fallacy( purist point of view)

Purist point of view

As Jessel MR would declare in Salt v Cooper

“… the main object of the act was to assimilate the transaction of equity business ad common law business by different courts of judicature. It has been sometimes inaccurately called the ‘ fusion of law and equity but it was not any fusion or anything of the kind. It was the vesting in one tribunal of the administration of law and equity In every cause, action or dispute which should come before that tribunal.”

These notions argued by men like Jessel have been termed as Purists. The Purist point of view is that the rules of Common law and Equity never actually merged. The merger that was adjudicated by section 25(11) of the Judicature Act was with regard to administrative purposes only. Individuals could go to one single court and have their matter determined therein. The matter would however be determined based on the system of laws it was premeditated upon.

If the matter arose in equity, it would be determined on the basis of equity. If it arose I common law, it would be determined under the precincts of common law. If dispute arose as to which system of rules to use, equity would prevail.

Purists further argue that in addition to keeping this system separate remedies for causes should also be kept separate; common law remedies cannot be granted for equitable wrongs and vice versa( equitable damages cannot be granted for common law wrongs).

The basis of a purist argument stems from two points;

• The belief that it is not in the jurisdiction of the courts to enact statutes and
• Further that it is the responsibility of courts to maintain judicial precedence.

The Judicature Act in section 25(11) speaks of merging the two court systems only.

“…Subject to the provision of this or any act, every court exercising jurisdiction in England and wales in any civil cause or matter shall continue to administer law and equity. ”

It does not in any clear words speak of the merger of the substantive rules of law and equity. It acknowledges that there are two systems of law in place, foresees conflict, and provides a solution to that conflict. It is the argument of purists that were it the intention of parliament to mingle the two systems of law, it would have precisely stated that fact in clear unambiguous terms. It is therefore not in the ambit of the courts to read in fusion where it does not exist.

Secondly, purists argue that courts cannot simply abandon judicial precedent that has existed for years. Common law is the basis for tort, most of the principles in property and commercial law, and contract law. Courts cannot, therefore, abandon these principles. There needs to be a sense of predictability in terms of causes.

Fusionist point of view

The second faction is the fusionist point of view. This view sees the two systems of law, purely merged. It sees equity and law as two streams that once flowed separately but have now conveniently converged into one river and now conveniently dispense justice as one.

At the forefront of this argument is Professor Tilbury. In his paper[footnoteRef:9], Tilbury declares that “Law borrowed from equity and equity generally followed the law.”

This statement is quite incredulous as it speaks volumes of common law. At the very beginning, English Common law was already borrowing heavily from Roman Law, especially after its conquest by the Normans in 1066. It went on further to borrow from equity to mitigate its harshness adding a human touch to itself. Equity eventually had to follow the procedures of the law and did not intend to change any bit of it. As Sir Nathan rightly put in Lord Dudley and Ward v Lady Dudley[footnoteRef:10], [10: (1705) Pr Ch 241 at 244]

“….Equity does not destroy the law, nor create it, but assists it”

Lord Diplock would hold in United Scientific Holdings Ltd v Burnley Borough Council

“…By 1977 this metaphor (of two streams running side by side) has in my view become both mischievous and deceptive. The innate conservatism of English lawyers makes them slow to recognize that by the Judicature Act, the two systems of substantive and adjectival law formerly administered by the courts of law and the courts of chancery….were fused. ”

It would thus seem from this argument that, the point of view of the purists stems mainly form a conservative, historical basis. A basis without any solid foundation. A basis which seeks to bask in nostalgia and not realize that equity and common law actually merged, with equity not only taking pre-eminence over common law but also mitigating and correcting common law where it had grossly failed.

Conclusion

It is thus in my opinion that the debate over doctrine of fusion is already settled and further that it has no relevance in today’s era. The argument that equity and common law have never merged is a fallacy based on nostalgia. Equity and common law have merged and come together forming a new system of law that is both convenient, efficient, and just.

In Kenya ( a common law jurisprudence) for example, common law has had a bearing on the procedural part of the law, influencing things such as timelines as to the start of suit, procedures of service, and modes of making applications in court. The rigidity of common law has been adopted in these procedures, in that failure to observe the law as laid down in the Civil Procedure Code with regard to the aforementioned will lead to striking of applications or the matter not being heard at all.

Equity on the other hand has had an influence on sentencing in criminal matters and remedies to grant in civil matters. The Criminal Procedure Code has given courts a lot of latitude in determining sentences for convicted persons based on the circumstances of each case. The law has been given a humane touch by the grace of equity. The system is convenient and efficient.

References

Statute

1. Statute of Westminster 1 1285
2. The Provisions of Oxford of 1258
3. Common Law Procedure Act, 1854
4. The Civil Procedure Code
5. The Criminal Procedure Code

Books

1. Bakibinga, David, Equity and Trusts, 2nd Edition, Oxford University Press, Kampala, 2009

Case Law

1. Gee v Pritchard [1818]2 SWANS 408 at 414
2. Re Telescritor Syndicate Ltd [1903] 2 ChD 174, 195, 196
3. Lord Dudley v Lady Dudley[1705] Pre Ch 241, 244
4. Re Diplock [1948] Ch 465 at 481
5. The Earl of Oxford’s Case [1615]
6. United Scientific Holdings Ltd v Burnley Borough Council (1978) AC 904, 924-925
7. Salt v Cooper(1705) Pr Ch 241 at 244

Articles

1. Tilbury, Michael, ‘Fallacy or Furphy? Fusion in a Judicature World” (2003) 26 University of South Wales Law Journal

The English word law has its starting point in the Old Norwegian word truly signifying “set down” which may allude both to something saw as a characteristic wonder, for example, the sun rising and setting each day, or to a lead set by people for controlling their shared conjunction. Henceforth, two sorts of laws might be recognized, to be specific, engaging and prescriptive ones. The previous depict how something carries on, the last endorse how one ought to carry on, e. g. how quick individuals should drive or that isn’t adequate to hurt others. It makes sense that if something is recommended there must be an authorize, additionally named punishment or discipline, for breaking such a solution, or, in legitimate terms, a run the show. Approvals might be arranged by earnestness or foundations accommodating these principles. Society when all is said in done might be viewed as the most casual sort of organization and at this level approvals may just appear as feedback, disparaging or condemnations, i. e. negative responses, so some hard-cleaned people may live joyfully through their lives totally overlooking this sort of authorize. At a more formal level of organizations made by the general public, for example, schools, sports clubs or places of worship, sanctions are felt all the more emphatically. One might be liable to a notice going before suspension of participation or a definitive punishment which is removal from the separate institution.

The powers that become an integral factor at the most formal level are those that the State discard, i. e. police and courts, and the lead creators. This sort of level is the thing that we are most keen on at the English Law for Lawyers Course so let us analyze this in more detail taking for instance a model circumstance from the region of games. Assume, an ice hockey player slams his adversary so hard that the awful is left gravely harmed and unfit to stroll for a significant lot of time. At the most casual level of social tenets he might be presented to booing, damaging words or even a few protests, for example, coins being tossed at him, which is obviously not endured by the refs as this goes too far between the casual principles and the more formal guidelines of social organizations, for example, sports clubs. At this more formal level the harsh player may confront suspension or money related punishment, or both, trailed by or went with authorizations at the most formal level, i. e. that of the administration made laws. These have the type of resolutions in common law nations and additionally points of reference in customary law nations. Two sorts of legitimate activity may result. To start with, the harmed player, called party hurt or oppressed gathering, may bring a common activity against the player who caused him hurt. This sort of debate could be managed in a common court bringing about the case being authorized by the court if the other player declined to settle secretly. The standard honor of the common court to the triumphant party is harms, i. e. money related remuneration. The other sort of legitimate activity could be criminal indictment led by the State as specific sorts are viewed as hurtful to the prosperity of the entire society and not just a private issue between two people. In a criminal preliminary the washout of the case might be indicted and condemned to a fine or even to detainment.

Eternal Law: The word unceasing means something that would keep going forever. Everlasting laws will be laws that have connected since the very beginning and would exist till the finish of time. These laws can’t be changed. A decent case of unceasing law is the law of gravity. From the initiation of time, it has been comprehended that nothing can escape the pull of gravity. This law would not be changed and is accordingly appropriate to be viewed as endless. Divine Law: Divine Law is alluded to as laws made by a god to oversee the undertakings of man. A decent case of awesome law can be found in Islamic law as proposed in the Quran. These laws are said to be given by God to the Prophet Muhammed to control the undertakings of man. The rationale behind the utilization of celestial law originates from the way that God, acknowledged as all knowing and all savvy, is in the best position to make laws for the utilization of humanity.

Natural Law: In the legitimate sense, characteristic law can be said to be law as upheld by the regular law scholars. This law is said to be the law that is natural in all humankind and can be found using reason. For instance, it is acknowledged in all societies that homicide isn’t right and ought to be rebuffed. Normal law is said to be the guide which positive law must follow with the end goal for it to be legitimate. In the event that Positive Law is at difference with common law, it could prompt treachery in the general public. Positive or Human Law: Positive Law can also be regarded as human law. These are laws made by man in order to guide the conduct of members of the society. They are laws made by persons given the authority to do so either directly or indirectly by the society. Legal positivism doesn’t concern itself with morals. Once a law has been enacted by persons in authority, it is valid.

Law can be classified as: International law Municipal law International law Universal law is an imperative part of law. It manages those principles and controls of country which are perceived and are authoritative upon one another through correspondence. Numerous legal adviser nonetheless, don’t give much significance to this branch. As of late, this part of law has developed complex and has procured expanding significance by virtue of globalization and other related variables. Universal law has been additionally named pursues.

Public universal law: This part of law identifies with the assortment of principles and directions which oversees the connection between countries. Nations commonly perceive these arrangements of guidelines which are official on them in their exchanges on a corresponding premise. Private universal law: Private global law is that piece of law of the State, which manages cases having an outside component. Private global law identifies with the privileges of private natives of various nations. Relational unions and appropriation of people having a place with various countries fall inside its space.

Municipal laws are essentially local or national laws. They control the connection between the State and its national and decides the relationship among residents. Metropolitan law can be additionally ordered into two sections: Open law is worried about the connection between the state and its natives. This contains a few expert territories, for example,

Constitutional law: Constitutional law is worried about the workings of the British constitution. It covers such issues as the situation of the Crown, the synthesis and strategies of Parliament, the working of focal and neighborhood government, citizenship and the common freedoms of individual natives.

Administrative law: There has been an emotional increment in the exercises of government amid the most recent hundred years. Plans have been acquainted with help guarantee a base way of life for everyone. Government offices are included, for instance, in the arrangement of a state retirement annuity, salary support and youngster advantage. Countless emerge from the organization of these plans and an assortment of law, managerial law, has created to manage the protestations of people against the choices of the controlling office.

Criminal law: Certain sorts of bad behavior posture such a genuine danger to the great request of society that they are thought about violations against the entire network. The criminal law makes such enemy of social conduct an offense against the state and guilty parties are subject to discipline. The state acknowledges obligation regarding the identification, arraignment and discipline of wrongdoers.

Private law is essentially worried about the rights and obligations of people towards one another. The state’s inclusion around there of law is restricted to giving an edified technique for settling the question that has emerged. Along these lines, the lawful procedure is started by the wronged native and not by the state. Private law is likewise called common law and is frequently appeared differently in relation to criminal law. Under this law there are: Individual Law: It is a part of law identified with marriage, separation and progression (legacy). These laws depend on religion, custom and traditions of marriage, separation, and legacy. In such issues, individuals are generally represented by the Personal laws set around their religions. For instance, the marriage of Hindus is administered by Personal laws like the Hindu Marriage Act, 1955 while Muslim relational unions are represented by the Muslim individual law in view of a Muslim standard law which is to a great extent.

Law of agreement: This part of the law relates to a territory where a man is required to accomplish something as a result of his guarantee, contract or law. It puts a commitment on the individual to play out specific activities which by and large emerge as an outcome of an enforceable guarantee or understanding. In the event that somebody damages his guarantee, that guarantee might be authorized in an official courtroom.

Law of tort: Tort is a common off-base. This part of law makes and gives solutions for common wrongs that don’t emerge out of legally binding obligations. A tort manages carelessness cases and additionally deliberate wrongs which cause hurt. An abused individual may utilize Law of Tort to guarantee harms from somebody who has made the wrong or lawful damage him/her. Torts cover deliberate acts and mishaps.

Property law: This part of law manages the responsibility for and portable properties. For instance, the Transfer of Property Act, 1882, manages exchange of relentless property, though the Sales of Goods Act, 1930, manages versatile property.