This is a class lecture from the course Principles of Equity, Trust and Roman Law conducted for first year law students at Jahangirnagar University

1. Principles of Equity,
Trust & Roman Law
Preeti Kana Sikder
Lecturer, Department of Law & Justice
Jahangirnagar University

2. Part A
Understanding Equity
The Origin and development of
Equity
Maxims of Equity

3. Understanding
Equity

4. Origin of the word
Aequus Aequitas Equity

5. Definitions of Equity
Plato :
“Equity is a
necessary element
supplementary to the
imperfect
generalization of
legal rules.”

6. Definitions of Equity
 Aristotle :
“The equitable is just and
better than one kind of justice-
not better than absolute
justice, but better than the error
that arises from the
absoluteness of the statement;
…it is a correction of justice.”

7. Definitions of Equity
The Concise Law Dictionary by
P.G. Osborn:
Equity is defined as primarily
fairness or natural justice

8. Origin of Equity
Historical Perspectives

9. Major Legal Systems
 Civil law is a legal system originating in Western Europe,
intellectualized within the framework of late Roman law,
and whose most prevalent feature is that its core
principles are codified into a referable system which
serves as the primary source of law.
 This can be contrasted with common law systems
whose intellectual framework comes from judge-made
decisional law which gives precedential authority to
prior court decisions on the principle that it is unfair to
treat similar facts differently on different occasions
(doctrine of judicial precedent).

10. Understanding
Common Law
Background and Development

11. The Road to Common Law
• Tribal
Rule
Anglo Saxon
Period
• Feudalism was installed
• Year 1066
Norman
Conquest
• Practice of King’s judges
• Minimised the variations of
legal rules and enforced
single set of law
Powerful
New
Aristocracy
developed
Common
Law

12. Who were the Anglo Saxons?
The Anglo-Saxon age in Britain was from
around AD 410 to 1066.
They were a mix of tribes from Germany,
Denmark and the Netherlands.
The three biggest were the Angles (southern
Danish), the Saxons (German-Dutch) and the
Jutes (northern Danish).
The land they settled in was 'Angle-land', or
England.

13. Anglo Saxon Law
There was a system of uncentralised
Anglo-Saxon law in the entity
Besides the Court of the King,
witenagamot (meeting of wise men),
each county would separately rule in
disputes, in their own courts, according
to their local customary law, through the
Shire and Hundred Courts.

14. Establishment of Feudalism
Feudalism was by its nature a hierarchical system
of power and social control based on land tenure,
and mutual benefit through income and military
support passed upwards, and the Kings protection
downwards.
The English feudal system had the King at the top
of the tree with control over the entire Kingdom of
England, nobles who sat next in line as tenant-in-
chief were wealthy land-owners by decree and
plead of allegiance to the King, and below this
were various tenants of the land.

15. The emergence of Common Law
William I set up the Curia Regis, or King’s Court, to
stand side by side with the feudal courts,
ecclesiastic and custom law courts.
The King would travel within the realm to hear
petitions of his subjects. He began to appoint
‘justiciars’, or judges, whom were official
representatives of the King, knowledgeable about
the law.

16. The Emergence of Common Law
 Over time a split of the curia regis occurred, one part
became a permanent body of justices of the Curia
Regis, formed to hear the ‘common pleas’. This Court
would no longer travel with the King and would sit in a
central location at Westminster.
 The other part was the ‘Justices in Eyre’, effectively as
a sub-branch of the curia regis. These itinerant judges
would travel to various regions of the country, known
as ‘circuits’, to resolve disputes on behalf of the king
and would apply law consistently.
 the decisions of these courts were recorded

17. The Emergence of Common Law
Two other courts, formed from the curia regis,
that were important for the basis of the
common law being developed were the Court
of Exchequer, which was primarily set up of
advisors to hear disputes of a financial nature,
and secondly the coram rege, or Kings Bench
who were kings direct advisors, responsible for
business affecting the king

18. The Emergence of Common Law
Thus the three common law courts had
developed, all empowered by the king, and all
operated by professional judges who were
knowledgeable in law and able to dispense
with the same (common) law across the realm.

19. William Blackstone
Common Law is the
municipal law of
England or the rule of
civil conduct prescribed
to the inhabitants of the
kingdom

20. Ronald Dworkin
“A judge working in a common
law system is like one author in
a chain of authors collectively
writing a novel, with each
person adding a “chapter” to
what came before. The
subsequent authors are
constrained by what has been
written before, but still remain a
significant level of freedom.”

21. Senses of Equity
• Natural Justice
• MoralityPopular
• A portion of natural justice which
was for certain circumstances
omitted to be enforced by
Common Law Courts
Technical

22. Introduction to Equity
 To ensure the smooth running of society it is necessary
to formulate general rules which work well enough in
the majority of cases.
 Sooner or later, cases arise in which, in some
unforeseen set of facts, the general rules produce
substantial unfairness
 In this situation, justice requires either an amendment
of the rule, or if the rule is not freely changeable, a
further rule or body of rules to mitigate the severity of
the rules of law

23. Introduction to Equity
Equity is such a body of rules or principles
which form an appendage to the general rules
of law
This new body of rules is distinguishable from
the general body of law, not because it seeks to
achieve a different end, nor because it relates
to a different subject-matter, but merely
because it appears at a later stage of legal
development

24. “An historical
accident”

25. Definitions of Equity
William Blackstone :
“Equity is the soul and
spirit of all law. Positive law
is construed and natural
law is made by it. (Equity is
synonymous with justice)

26. Definitions of Equity
Sir Henry Maine:
“A fresh body of rules by
the side of the original
law, founded on distinct
principles and claiming to
supersede the law by
virtue of a superior
sanctity inherent in those
principles.”

27. Sources consulted
 http://www.liquisearch.com/civil_law_legal_system
 http://legal-dictionary.thefreedictionary.com/common+law
 BBC Bitesize: The Norman Conquest http://www.bbc.co.uk/guides/z3s9j6f
 History of Common law
https://blogs.harvard.edu/mparrington73/2016/03/16/a-short-history-of-the-
common-law/
 B.M. Gandhi, Equity, Trust and Specific Relief, 4th Ed, Eastern Book
Company, pp 3-18, 2009
 R.E Megarrv & PV Baker, Snell’s Principles of Equity, pp 3-14, Sweet &
Maxwell Limited, 1960
 Simon Askey, Ian McLeod, Studying Law, Palgrave Macmillan, 2011