Comparison Of Common Law And Equity Law

2888 words - 12 pages

Originally, common law was customary law, folk law, based on precedent. There was of course statutory law -- the king's law -- but common law guided how it was enforced and administered. No real common law exists today, having been entirely codified as statutory law throughout the English-speaking world. There remains, however, what are sometimes termed common law rights.Now and again, a new situation arises where there is no law to guide a judge, but where there really is something to adjudicate. One case I recall (from the 70?) involved a common law right to sunshine for solar panels; a homeowner had installed such panels, but a neighbor subsequently built a fence or structure which blocked the sun's rays. The guy was adjudged to have a common law right to the sunshine, more or less on old common law water-rights law and the neighbor lost. This particular case involved equity as well.Equity came into play when there was no precedent for the case at hand. This happens even today. If there is something for the court to adjudicate, but no guiding precedent or statute to guide how the case is to be decided, the judge (perhaps through a jury) creates a new precedent based on what is fair and equitable. This is a very common sense legal doctrine.A system of jurisprudence supplementing and serving to modify the rigor of common law.History of the common lawCommon law originally developed under the inquisitorial system in England from judicial decisions that were based in tradition, custom, and precedent. Such forms of legal institutions and culture bear resemblance to those which existed historically in continental Europe and other societies where precedent and custom have at times played a substantial role in the legal process, including Germanic law recorded in Roman historical chronicles. The form of reasoning used in common law is known as casuistry or case-based reasoning. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence, and as developing the body of law recognizing and regulating contracts. The type of procedure practised in common law courts is known as the adversarial system; this is also a development of the common law.Before the institutional stability imposed on England by William the Conqueror in 1066, English residents, like those of many other societies, particularly the Germanic cultures of continental Europe, were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a cauldron of boiling water or some other "test" of veracity (trial by ordeal). If...

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