The Law and its importance

Equity

Because the Lord Chancellor decided petitions addressed to the king, he became known as the 'Keeper of the King's Conscience'; and because there were so many petitions, he came to preside over his own court. It was called the Court of Chancery. The Chancellor did not try criminal cases. He dealt only with civil disputes concerning, for example, matters of property and breaches of contract. He set out to do justice in these cases where the parties (people involved in a case) were able to show that the common law courts were not able or prepared to do justice. The law that was applied in the Court of Chancery was known as equity.

The essential principle by which the Court of Chancery acted was that everyone should receive fairness and justice. There were three important conditions that a person seeking justice from the Court of Chancery had to meet:

He had to show that he could not receive justice in the common law courts.

He had to show that he was himself without blame. This was called 'coming to court with clean hands'.

He had to show that he had not delayed in bringing his case before the court.

The historian and jurist John Selden (1584-1654) in his remarkable book Table Talk wrote: 'Equity is a roguish thing. For law [common law] we have a measure, know what to trust to; equity is according to the conscience of him that is Chancellor and as that is larger or narrower so is equity/

In 1873, the Judicature Act 'merged' common law and equity, and although one of the divisions of the High Court is still called the Chancery Division, since that time all the courts have been permitted to administer both, parliament decreed that where there was a conflict between the common law and the laws of equity, equity should be supreme.

Judge-made law

There are now dozens of different publications containing detailed reports of leading cases in all areas of the law. Each report begins with a 'headnote', which provides an expert summary of the facts and the court's decision. This summary is followed by the exact words of the judgments given by the judges. Edited by qualified lawyers, their accuracy is confirmed or 'approved' by the judges themselves. The principles of law as stated in these cases must normally be accepted and followed by the next court which has a similar case.

Many thousands of cases have come before the courts, and the decisions of the judges, like the individual stones of a palace—case by case, year by year-have added to the gradual build-up of the law. In this way, over the years and running alongside the laws passed by Parliament, a great body of law, known as judge-made law, has been developed. It is not possible to see it, as we can see a royal palace such as Windsor, or indeed the Palace of Westminster, where Parliament passes its laws. It is an Invisible Palace, but still it exists—and it plays a vitally important part in the English people’s life.

The Law and its importance

Human beings have always lived together under rules of one kind or another. It does not matter where in the world; it does not matter in what age, whether the society in which they lived was a simple or a complex one by our present-day standards-humans have always as a matter of necessity lived by rules. These rules are likely to be influenced by nature and the natural environment of the society in which people live, and by the simple natural instinct everyone has for survival. They may be influenced by religious or secular beliefs, and they will cater for the ideas of right and wrong that have been developed over time to suit the society in which they live.Think about yourself. If you form a club or society to include your friends, almost certainly the first move will be to choose a leader and make up some rules. You may find that they do not all work, and as time goes by you will change and adapt them to suit your needs, and any new ideas you may have; but you will not be able to manage without any rules at all. Every sport has to have its own set of rules. Even the simplest sport such as running a race must have rules. If it had none at all, everyone would set off at different times and in different directions and stop at different places!

If we think about our own family and school, past or present, we will know that there are things that we have to do and things we are not allowed to do.

In this country we have three main kinds of rules:

1. Rules that are the basic commonsense rules of everyday life. We must have rules that forbid us to do things which almost everyone thinks of as plainly and morally wrong. We must not kill or rob. This all seems very obvious and we would expect to find the same rules in countries throughout the world. Nevertheless, we must have rules in our own country which make killing and robbing crimes, and provide a system of punishment for those who commit these and other crimes.

2. Rules that govern things that have become important in our particular community and about which we have learned from experience. It is the rule that the driver and passengers in a car must wear seat-belts. This is the law in many countries, but of course it was not always so. We did not have any cars until the early 1900s. We did not have any motorways until the 1960s. We are required to wear seat-belts because there were so many road accidents, and we learned from experience that in most cases they provide protection from injury

3. Rules which have gradually developed over a period of many years, because it has become the custom to do things in a particular way, and that

custom has become a settled and accepted way of behaviour. An example of this is our 'mercantile law', which deals with the way people trade with one another. Mercantile customs are important not merely in a domestic setting. Trade between countries throughout the world is based upon customs, and international trading practices have been accepted as part of our own commercial law.

How important is the law.

1. The laws that apply to everyone, wherever we may be, are called the laws of

the land. It is the law throughout the whole land that no one should steal

and no one should supply certain drugs.

2. The laws that only apply locally, in the areas in which we live, are called by-laws. For example, there might be special local laws which govern the traffic that uses only roads in your area.

Whether laws are laws of the land or by-laws, they are mostly inspired by the desire to improve our lives and protect us from harm. They give each of us rights, which should be respected by others. We also have duties to obey them whether we like them or not; and when we do so we automatically protect the rights of people around us. This simple balance, which gives everyone rights and imposes on everyone equal and opposite duties towards others, is one of the basic structures of the law.

The Common Law

King Henry II (reigned 1154-89) was particularly interested in law and order, and played an outstanding part in the development of the legal system. He understood that a single system of justice for the whole land under the control of the king would not only help to unify the country, but give him great power. He studied how best to achieve this.

In 1166 Henry issued a Declaration at the Assize of Clarendon that the remaining judges should be sent out on circuits to travel different parts of the country. When they did so they had to apply the laws that had been made by the judges at Westminster. In this way many local customary laws were replaced by new national laws. As these national laws would apply to everyone, they would be 'common to all'. These laws therefore became known as the common law.

The system which developed, of judges sitting in London and also travelling the country, became known as the 'Assize system'. this day High Court judges still sit in London for part of the year and then travel the country to hear cases in much the same way as they have done for centuries.

Although judges, when travelling on Assize, would wherever possible put into force the same laws as were being applied at Westminster, they would not altogether ignore the customs of the region. They would learn from them, and if they approved of them they would be prepared to accept them as the law, sometimes even carrying them on to other parts of the country, and back to Westminster itself. The judges sitting in London held their courts in Westminster Hall.

The common law, originally based upon the common customs of town and country and gradually developed over the centuries, has become one of the most prized features of our national way of life. Many of our most famous judges have been known as 'great common lawyers', committed to the advancement of our laws and the rule of law. The common law has been aptly described as 'The common-sense of the community, crystallised and formulated by our forefathers'. This is because, as we shall see, many of our laws have been based upon what the courts would expect the 'reasonable' man to do and think in certain situations.

Date: 2016-04-22; view: 2995