Common law and equity

Common law and equity

Main article: Common law

King John of England signs Magna Carta

Common law and equity are systems of law whose special distinction is the doctrine of precedent, or stare decisis (Latin for "to stand by decisions"). Alongside this "judge-made law", common law systems always have governments who pass new laws and statutes. But these are not put into a codified form. Common law comes from England and was inherited by almost every country that once belonged to the British Empire, with the exceptions of Malta, Scotland, the U.S. state of Louisiana and the Canadian province of Quebec. Common law had its beginnings in the Middle Ages, when the English monarchy had been weakened by the enormous cost of fighting for control over large parts of France. King John had been forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that the King's entourage of judges hold their courts and judgements at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country.^[51] A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges, the English Court of Common Pleas had five.^[52] This powerful and tight-knit judiciary gave rise to a rigid and inflexible system of common law.^[53] As a result, as time went on, increasing numbers of citizens petitioned the King to override the common law, and on the King's behalf the Lord Chancellor gave judgement to do what was equitable in a case. From the time of Sir Thomas More, the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery. At first, equity was often criticised as erratic, that it "varies like the Chancellor's foot". But over time it developed solid principles, especially under Lord Eldon.^[54] In the 19th century the two systems were fused into one another. In developing the common law and equity, academic authors have always played an important part. William Blackstone, from around 1760, was the first scholar to describe and teach it.^[55] But merely in describing, scholars who sought explanations and underlying structures slowly changed the way the law actually worked.^[56]