JUSTICE VS. FAIRNESS!

As I have prepared for my case, I have spent a lot of time reading case law, not as much as you might imagine I would, but enough. As I read through the discussions, when it gets to the point of decision, the Trial Court will often pause to make a statement such as, "but since our Trial Courts are Courts of Equity we will do the following" implying that, somehow, if they weren't Courts of Equity they might not act as they have chosen to.

So, my question is, what does that mean, that our Family Courts are Courts of Equity? Here is the story.  Apparently, there are two kinds of Courts--Courts of Law and Courts of Equity. 

Courts of Law, which are based upon Common Law, emerged during the reign of King Henry II of England around the 1150s and 1160s.  Before then, the Courts ruled based upon the broad range of local customs, and decisions on similar offenses would vary based upon where you lived.  However, when Henry II came into power, he attempted to create a unified code of common law throughout England.  This continued to develop throughout the 12th and 13th centuries resulting in collective judicial decisions based upon tradition, custom and precedent. 

In other words, King Henry II established Common Law.  Common law, which is also known as case law, bases decisions on precedent. In essence, whatever has been done before in a similar case, will very likely be done in the next case. This is known as casuistry.

The idea behind the common law system is that it is unfair to rule differently on the same set of facts. Thus, if there is a question of what does the law require people to do in a particular situation, the judges will look at what has been done in these situations in the past and rule accordingly. This kind of decision making is based upon the principle of stare decisis, i.e. the concept that similar cases should be decided according to consistent principled rules so that they will reach similar results. 

However, if there is something about a particular case that has not yet been ruled upon, or what is called a "matter of first impression", judge are required to make the law by creating a new precedent. After that, the new law then becomes the precedent and all future trial courts will have to act on the basis of that new precedent. 

Also, fundamental to the practice of Common Law is the adversarial system, which, as most of us know means that each side, Plaintiff and Defendant, face off against each other in a pitched verbal battle, and the judge decides who wins the case.  There is probably a lot more to it, but that is as far as I would like to discuss this idea at the present time! 

Another important concept that came along with the development of Common law was the doctrine of the supremacy of the law. Supremacy of the law was originally intended to say that no one is above the law, not even the King. This doctrine has since been expanded to mean that even government agencies are subject to the law.

Common law is different from statutory law--law that is enacted by the legislature, and regulatory law, law that is established by executive branch agencies pursuant to delegation of rule making authority from the legislature.

The Courts of Law (which, again are based upon Common Law) are in contrast to Courts of Equity.  The Courts of Equity were developed two or three hundred years after Common Law was established as a method with which to introduce fairness into the legal system. 

With Common Law, sometimes enforcement of laws and legal rules was unfair or harsh because the rules were administered in an inflexible manner. That is, they were applied rigidly, even if the outcome was, in fact, unfair. To overcome this inflexibility, Equity Courts (also called Courts of Chancery) were established.

Originally, If they felt the Courts based upon Common Law had failed them, litigants could appeal to the conscience of the King--in other words have the King adjudicate the case.  This got to be rather burdensome, so eventually, rather than handle all these cases, the King delegated the work of adjudicating them to the Lord Chancellor, usually a member of the clergy, who was a symbolic representative of the King's conscience and  an important member of the King's Council.

Eventually, this business of appealing to the King soon evolved into another court system based upon concepts of equity, or canon law (Church Law) which was based on broad principles of justice and fairness.  This new court system was known as the Courts of Chancery, and eventually became known as Courts of Equity.

So, perhaps it is legal for Mr. Jones to take Mr. Smith's land, but would it be fair?  The question of what is fair is the province of Courts of Equity.  Thus, according to Black's Law Dictionary, equity is defined in part as, "Justice administered according to fairness as contrasted with the strictly formulated rules of Common Law."

Courts of  Law generally handle contract, landlord/tenant, foreclosure and other cases where a written document is involved. In these cases, it doesn't matter what was going on with you, or what your social circumstances were, the question is did you or did you not obey the contract, or did you or did you not pay your rent or mortgage.  If you committed the crime, then you would be punished. 

Courts of Equity generally handle family law cases and/or bankruptcy cases. The way it goes in a Court of Law, a judge must follow the law even if you were justified in breaking the law. In a Court of Equity, the Court can use its own discretion to determine whether you were justified or not in breaking the law, taking into consideration the litigant's motivations and social circumstances

One distinct aspect of a Court of Equity is that it does not allow for a jury trial based upon the 7th Amendment to the Constitution.  In a Court of Equity, only the judge is the trier of fact.  However, Courts of Equity do have a broader range of discretion to provide relief to citizens who come before them. 

It is also important to note that remedies in common law are defined by monetary damage while remedies in equity may be further expanded to injunctive relief that can order someone to do something or refrain from doing something.  In a Court of Equity, failure to follow the court's order to do or not do this thing can then be enforced by a contempt of court order resulting in fine or imprisonment or both.

At this point, the vast majority of Trial Courts in the United States have merged so that Courts of Law and Courts of Equity are often in the same courts, but they are flexible about providing both remedies.  Attorney James M. Bright provides the following example of that kind of situation:

"John Sodbuster has planted 10 acres of wheat, but just as the seeds are sprouting Sam Cattleman decides to drive his cattle over John's field.  A civil Court of Law could determine the value of the damage caused by Cattleman to Sodbuster's crop and order payment, but that does not solve the whole problem.  If Sodbuster gets reimbursed for his lost crop and Cattleman continues to drive cattle across Sodbuster's land, then Sodbuster is suffering additional damage which cannot easily be ascertained or which may not be compensable with money.  At this point, equity can step in and the court can order Cattleman not to drive cattle across Sodbuster's land.  If he continues to do so, the Court could not only assess  additional charges, the Court could lock Cattleman in jail for failure to heed the Court's order." 

So basically, Law is the set of rules which are to be enforced.  Equity is a system of justice administered according to standards of fairness.  Equity follows the law.  This means that, in Courts of Equity, applicable laws will be followed where they exist.  Where there are no applicable laws, principles of equity will be followed. 

Why this is important? It seems to me is that, if you are in Trial Court and the opposing counsel brings up case law as a sole justification for a decision against you which would be not only unjust, but unfair, I think you would be well within your rights to remind the judge that Family Court is a Court of Equity. 

If the outcome of a decision based upon case law would be unjust, since family court is a court of equity, it must also take into consideration the issue of fairness when making a determination.  Or to put it another way, as a Court of Equity, Family Court should not be allowed to rule in a manner that is fundamentally unfair.  That is an interesting point, don't you think?