Introduction
The English legal system is one of the most influential in the world, forming the basis for the legal structures of many countries, including the United States, Canada, and Australia. A defining characteristic of this system is its description as a "common law" system. This label primarily reflects its historical development and its reliance on judicial precedent as a source of law, distinguishing it from the "civil law" systems prevalent in continental Europe, which are based on codified laws. However, the common law itself proved to have limitations, being rigid and sometimes delivering unjust outcomes. In response to these deficiencies, a separate system of justice known as Equity developed. This essay will first explain the origins and features that define England and Wales as a common law jurisdiction. It will then proceed to describe and discuss the historical development of Equity, from its inception as a corrective force to its eventual fusion in administration with the common law, creating the dual system that exists today.
The Foundations of the Common Law System
The term ‘common law’ has several meanings, but in the context of describing a legal system, it refers to a system where the law is developed by judges through decisions in cases and where the doctrine of judicial precedent, or stare decisis, is fundamental (Slapper and Kelly, 2017). This contrasts with civil law systems, where the primary source of law is comprehensive legal codes enacted by a legislature. The origins of the English common law can be traced back to the Norman Conquest in 1066. Before the conquest, law in England consisted of a patchwork of local customs that varied from region to region. William the Conqueror began a process of centralising the system of justice by establishing the King's Court (Curia Regis) and dispatching royal judges to travel the country. These judges applied a uniform, or ‘common’, set of legal principles across the entire realm, gradually superseding the diverse local customs (Baker, 2019).
A crucial element in the early development of the common law was the writ system. In order to bring a claim before the royal courts, a claimant had to purchase a writ from the Chancellor’s office. A writ was a formal document that outlined the basis of the claim. Each type of claim had a corresponding writ, and if a person's problem did not fit neatly into an existing writ, the common law courts could offer no remedy. The rule became ‘no writ, no remedy’. Over time, this system became highly formalised and inflexible. The Provisions of Oxford 1258 severely restricted the creation of new writs, which meant the common law struggled to adapt to new types of disputes or provide justice in situations where the strict application of its rules led to an unfair result (Hudson, 2017). Furthermore, the only remedy typically available in the common law courts was damages (monetary compensation), which was not always an adequate solution for a wronged claimant.
The most important feature that defines the English system as one of common law is the doctrine of binding judicial precedent. This principle requires courts to follow the decisions of higher courts, and in some cases their own previous decisions, when ruling on similar cases. This ensures consistency, certainty, and predictability in the law. A hierarchy of courts is essential for this system to function, with the Supreme Court at its apex, whose decisions bind all lower courts. The law is therefore not just found in statutes passed by Parliament, but is also created and refined incrementally by judges through the resolution of individual disputes. It is this historical foundation, the use of precedent, and the judge-made nature of its core principles that explains why the English legal system is known as a common law system.
The Development and Role of Equity
The inflexibility of the common law and its limited range of remedies created a need for a more flexible and just system. Individuals who were unable to obtain justice in the common law courts began to petition the King directly, as he was seen as the ‘fountain of justice’. The King, in turn, delegated the responsibility of hearing these petitions to his most senior minister, the Lord Chancellor, who was traditionally a cleric and referred to as the 'keeper of the King's conscience' (Slapper and Kelly, 2017).
Initially, the Chancellor’s decisions were based on his own moral view of the case, applying principles of natural justice and fairness to reach a just outcome. This process gradually became more formalised, leading to the establishment of a dedicated court, the Court of Chancery, which administered a body of rules known as ‘Equity’. Equity was not intended to be a complete legal system that would replace the common law. Instead, its purpose was to supplement the common law, to soften its hard edges, and to provide remedies where the common law either provided none or provided an inadequate one. As Maitland famously stated, Equity came 'not to destroy the law, but to fulfil it' (Maitland, 1909).
Equity developed its own distinct principles and remedies. Its jurisdiction was discretionary, meaning remedies were not granted as of right but at the court’s discretion based on the specific facts of the case. This discretion was guided by a set of principles known as the maxims of Equity. These maxims, such as ‘He who comes to equity must come with clean hands’ and ‘Equity looks to the intent, rather than the form’, reflect the moral and justice-based origins of Equity. For example, a claimant who had acted improperly in a transaction would be denied an equitable remedy.
Crucially, Equity introduced new remedies that were unavailable at common law. These include the injunction (an order to stop doing something), specific performance (an order to perform a contractual obligation), rescission (an order to set aside a contract), and rectification (an order to correct a mistake in a document). These remedies provided more appropriate solutions in many cases than the common law remedy of damages. For example, a claimant wanting to prevent a neighbour from building a structure that would block their light would find an injunction far more useful than damages awarded after the fact. Equity is also credited with the invention of the trust, a device which separates the legal ownership of property from the equitable or beneficial ownership, which has become a cornerstone of property and commercial law (Hudson, 2017).
As the Court of Chancery’s power grew, it came into conflict with the common law courts. A defendant who had been found liable in a common law court might obtain an injunction from the Court of Chancery to prevent the successful claimant from enforcing the common law judgment. This tension culminated in the Earl of Oxford’s Case (1615), where the Lord Chancellor issued an injunction against a party who had obtained a judgment in the common law courts through fraud. The Chief Justice of the King's Bench, Sir Edward Coke, challenged this. The matter was referred to King James I, who ruled that in any case of conflict between the two, Equity would prevail. This principle established the supremacy of Equity and remains a fundamental rule of the English legal system, now enshrined in statute in section 49(1) of the Senior Courts Act 1981.
Despite this resolution, the practical problem of having two separate court systems remained. A claimant might have to start actions in both courts to get a full resolution, which was inefficient and expensive. This procedural separation was finally addressed by the Judicature Acts 1873-1875. These Acts did not fuse the principles of common law and Equity, which remain distinct bodies of law, but they fused their administration. The old separate courts were abolished and replaced with a single High Court of Justice, which was empowered to apply the rules and award the remedies of both common law and Equity in any single case.
Conclusion
In conclusion, the English legal system is termed a ‘common law’ system due to its historical evolution from a uniform law applied by the King’s judges and its continuing reliance on the doctrine of judicial precedent as a primary source of law. The law is developed case-by-case, creating a rich and detailed body of jurisprudence. However, the very features that gave the common law its strength—its consistency and formality—also created rigidity and the potential for injustice. It was in response to these failings that Equity emerged as a parallel system, offering flexibility, fairness, and new remedies based on the concept of conscience. The relationship between the two systems evolved from conflict to one of co-existence, cemented by the Judicature Acts which created a unified court structure. Today, common law and Equity operate side-by-side, providing a comprehensive legal framework where the strict application of legal rules is tempered by the principles of fairness and justice, ensuring that the system as a whole can adapt to the complexities of modern disputes.
References
Baker, J.H. (2019) An Introduction to English Legal History. 5th edn. Oxford: Oxford University Press.
Hudson, A. (2017) Equity and Trusts. 9th edn. Abingdon: Routledge.
Maitland, F.W. (1909) Equity: A Course of Lectures. Cambridge: Cambridge University Press.
Slapper, G. and Kelly, D. (2017) The English Legal System. 18th edn. Abingdon: Routledge.
Earl of Oxford’s Case (1615) 1 Ch Rep 1.
Judicature Acts 1873-1875.
Senior Courts Act 1981.
