A bridge between courts of common law and courts of equity
Quote:
Originally Posted by
allodial
[This is mainly to illustrate an olde ancient bridge between courts of common law and courts of equity--that a court of equity could --even in 1500s England--hear common law cases.]
The question (or fact) remains: could they then apply common law remedies as in a court of law. For anyone who has studied law as it is applied in the real world of corporations and legal fictions, the answer to this is obvious.
Courts of equity apply equitable remedies in favor of expediency and what they call "in the interest of justice." But this does not imply that such a remedy is either moral or ethical if the remedy is compelled. There is a sentence in a Wikipedia entry about merchant law which explains this in succinct detail: “It [lex mercatoria or merchant law] emphasized contractual freedom and alienability of property, while shunning legal technicalities and deciding cases ex aequo et bono.” If you understand the significance of this sentence, then you understand the difference between courts of equity and courts of law.
One of the maxims of equity law is: “Equity will not suffer a wrong to be without a remedy.” When seeking equitable relief in a matter, the one who has been wronged has the stronger hand. The stronger hand is the one who has the capacity to ask for a legal remedy (judicial relief). In equity, this form of remedy is usually one of either specific performance or an injunction (injunctive relief). These are considered superior remedies to those administered at common law, such as damages.
In parsing out the meaning of that Wikipedia entry, first we need to find out what cases ex aequo et bono means? This is, of course, a Latin term which means “from equity and conscience,” or “according to what is right and good,” and is used as a legal term of art. In the context of arbitration through a court of equity, it refers to the power of the arbitrator (the judge, in this case) to dispense with the normal consideration of the law (ethical and moral law, i.e., “legal technicalities”) and consider the matter solely in a way that they consider, in their discretion, to be fair and equitable to the parties in the case at hand. In other words, according to private law written by men (lex scripta) rather than the common law as it arises according to natural law (lex non scripta or unwritten law which retains its ethical and moral boundaries).
Yet, as we all know, what may be seen as “right and good” in a given circumstance may not always be fair and honorable, taking into consideration such lawful technicalities as the moral and ethical issues involved in a matter. Think about the example of a piece of real property (someone's home) being lien against, the owner being evicted until he pays the back property tax allegedly due.
