Thursday, 16 March 2017
Equity and the role of law in the 21st century
Equity is a legal doctrine applicable in most of the jurisdictions of the world. A legal doctrine is a set of principles laid down by a previously existed authority for the administration of and by an existing authority. Such principles must have been tried for some time to evaluate and examine its usability. Equity, to this end, has been as a legal doctrine though not as the age of common law but for a reasonable and practicable time.
Equity is a legal doctrine of or that ensures that what is seen to be practicably “fair” and “just” is done in situations where such possibility was thin or non-existent. This fairness and justness done by equity is predicated on what is in form with the conscience rather that is ought to be done as could be prescribed by the position of another legal machinery. “Such legal machinery could be an already enacted and codified statute law, a practicable and offensively obnoxious custom in a particular district and the likes of it.
Equity mitigates the harshness of the application of the positions and provisions of this legal machinery. It is opposed to positive law i.e. law as it is or law in its strict sense as made by the parliament. These laws in their application wield such power as to workout harshness, unfairness, injustice, etc, in contrast with justice, the end for which law is the means. When there is a foreseeable unfairness and harshness in the application of the strict law equity becomes a point of divergence for the court to justice. Equity ensures that the application of statutory rule or common law does not result in unfairness in a particular case.
WHAT IS EQUITY?
Literally equity means right doing, good faith, honest and ethnical dealings or whatever is right and just in all human transactions and relationship. It is based on the principle of fairness and justness of the act done in law. In the juristic and legal connotation of equity it means “the power to meet moral standards of justice in a particular case by a tribunal having discretion to mitigate. The rigidity of the application of strict rules of law so as to adapt the relief to the circumstances of the particular case.” It is a generous interpretation of the law as it is without doing harm to the general principles and provisions thereof. Equity is the application of strict laws in a more conducive manner to do justice with fairness without harshness, yet retaining the letters of the law. It is noteworthy however, that the application of equitable principles cannot be independently done, rather it is done or applied to some other legal doctrines that has existed before its inception. Such legal doctrine could be called ‘common law’. This is to say that take away the common law equity will stray.
Technically, equity is what was developed in the court of Chancery and administered therein before 1875. It is a body of rules which was practiced initially only in the Chancery.
This of course brings in the issue of the origin of the legal doctrine of equity.
ORIGIN OF EQUITY
Equity originated on the heels of the inadequacies of common law, emphatically, is the law as it is and generally applied.
Equity is a principle developed by the Chancellor who heads the chancery. The application of common law was strictly by writ systems which cannot be changed owing solely to the fact that they have been crystallized. These systems in themselves provides some remedies in particular cases, some which were not sufficient and for some cases there were non-existent of remedies. Also, the writ systems has strict forms which must be followed else the remedies that accrues to such action could not be obtained. All these were ensured and strictly followed by the common law judges who were in effect keepers of the law. The rigid position of the common law Judges in the administration of the common law produced untold hardship and injustice. Many injuries could not be redressed because they do not fit into the existing forms of action. In many cases where common law purported to give remedies, such remedies were inadequate, and therefore could not serve the end of justice. In events where shallow remedies were granted coupled with those actions without a particular writ to warrant its remedies thereby leaving it without remedy were sources from which petitions were sent to the King begging for his ‘grace’ and ‘charity’ on the matters. By the profusion of appeals from the decisions of the common law court to be king the mandate to do justice was transferred to the chancellor who was referred to as “keeper of the king’s conscience”. The chancellor was the king’s first secretary and the keeper of the Great Seal who in his official capacity dispense justice in the name of the king. Overtime, the Chancellor continues in doing justice, his office to that effect was named the “Chancery” or succinctly, ‘Court of Chancery’ or Court of Equity.
The administration of equity at the Chancery and common law at the common law courts were paralleled for over a century whereby the decisions of the common law judges are often upturned or suspended. This brings about the rivalry between these two doctrines, the resolution for which was in favour of equity. The judicature Act of 1873-75 was a uniting instrument through which there was a fusion of both doctrines and their principles and applications in both settings. Every common law countries now administer these doctrines instantaneously.
From the origin of the legal doctrine equity it is obvious and can be deduced that equity cannot stand independently on its own, though as a fair and just legal doctrine, it must be applied to and on something which has existed before it. Equity is not a self-sufficient system but presupposes the existence of the common law. As observed by Hood Philips, “if all equity were abolished we should still have a coherent though in equitable common law, but if the common law were abolished we should be left with a number of unrelated principles suspended in mid-air”. It is sufficient therefore to say that the justness and fairness of equity does not make it an independent legal doctrine. Its principles and practices amounts to nothing if it is not tried on something called “common law” which before it has existed in however unjust and unfair it has been.
OPERATION/APPLICATION OF EQUITY
The operation of the legal doctrine called equity is basically predicated on the “conscience”. Such conscience is one that is fair, just, right, etc, that is ready to be tilted in the way of justice. It seeks either to prevent any benefit accruing to a defendant as a result of some unconscionable conduct or to compensate any loss suffered by a claimant who results from some unconscionable conduct. Parties to litigation have shown the tendency of using their clandestine means and affluence to tilt the decision of court in their favour; against the will justice and the operation of fairness justice is kidnapped in the favour of the surreptitious. Equity in such instance takes the position to do justice based on reason, conscience, natural law, and morality of the instant case. The fairness and justness of equity is done in such a manner that the imminent injustice and hardship is averted. In every individual case equity takes a position that is materially suitable and best applicable to the case. In a particular case wherein the common law court is aware of a subject-matter though cannot adjudicate thereon based on the non-existent of such jurisdiction equity creates such new rights by recognizing the exigency of its creation and enforcement. This is the exclusive right/jurisdiction of equity. It does this in compensation and augmentation of the inadequacies of common law. Also in such, case wherein the common law remedies are seen to be inadequate equity creates new remedies to satisfy the end of justice. When the approach of the common law courts to get to the end of the justice is insufficient thereby depriving the courts of adequate fact-finding procedures equity creates new procedures for the common law courts, such procedures as interrogation, discovery of documents, perpetuation of testimony etc.
The independence of equity is not absolute, though as legal doctrine which has from time ago been used, it also has been tried thereby to further crystallize its feeble principles into an outstanding one, its usages has not been effective without the presence of common law. The maxim aequitas sequitur legem applies in every circumstance. The Latin maxim is a strict principle of equity that cannot be swayed. The application of the maxim is to the effect that however fair and just equity might be its fairness and justness cannot in itself contrast the provisions of the law. Its operation and application is juxtaposed with the law, it cannot stand with the law it shall then be void. From its development and origin above it is sufficient to say that equity does not exist independently without attribution to common law. Moreover, its application is directly to nothing else but common law. From the observation of Hood Philips, the extinction of common law is the failure of equity; nothing will it apply to and its usages will be thrown to the background. This does no prejudice to its justness and fairness; it cannot exist on its own without the presence of common law however, inequitable it is. Equity is a fair and just legal doctrine that is meted on the strict application of common law to mitigate its rigour and harshness. It is to correct men’s consciences for frauds, breach of trusts, wrongs and oppressions and to soften and mollify the extremity of the law.
Without doubt equity is a just and fair legal doctrine. Its independence can be viewed from its origin, how it has come to be. It will be considered that equity will with its entire equitable jurisdiction stray without the common law. The fairness and justness of equity hence does not guarantee its independence, it is with the view of Hood Philips that equity will stray. However, the effectiveness and sanctity of a principle is in its ability to stand on its own without incessant recourse to another. Equity as a legal doctrine should be independent; it cannot for the reason of its sole reliance on the common law. Its principles are integrated into the end of the law. The law is set out to do justice whereupon equity has come to perfect. It is sufficient then to say that both are interdependent just as they are fused.
CRITICALLY ANALYZE THE ROLE OF LAW IN THE 21ST CENTURY
The 21st century comes with challenges which ordinarily would be impossible to tackle without the use of a coherent and coercive mechanism. The century comes with sophistication. The role of law in the society is to ensure peace, order, and to do justice in every stance. In the 21st century law has been turned into a sophisticated instrument owing to the fact that the century itself is sophisticated. The rate and standard of crime in the 21st century society cannot be likened to those that were prevalent in the past centuries. The advancement of the society and everything therein makes it expedient for the law that will have binding effort to be raised to that standard.
WHAT IS LAW?
Technically, law is “a rule or body of rules made by institutions, bodies and persons vested with the power to make such rules which are binding and enforced among the members of a given state or society.” Law is something that is binding and affects the life of the members of a given society. Any society in which human beings associate for any length of time requires some mechanism to secure this collective stability which will further concretize into the social relationship that will keep such society in existence. Law is an instrument used in ruling and keeping the society to be and remain together. It has a coercive power to ensure that everyone living in a society conforms to the provisions therein. By nature law is normative, coercive, and a body of rule which must be observed to the letter.
In the words of Sir William Blackstone, law “is the rules of action which is prescribed by some superior and which the inferior is bound obey.” In this regard the purported inferior are not necessarily and literally inferior, and vice versa, rather, it is an arrangement that the purported superior should make laws which shall be binding on the inferior buy the reason of the powers given to them (by the inferior) to do so. Such laws are seen to be supreme over every authority. The 21st century is not an exception in the practice of the supremacy of law however the century is thriving. All over the world laws are passed to salvage the society from different challenges that are thorns to the society. In the 21st century the various functions of law are being utilized in curbing and salvaging the century. Law is an instrument for regulating the society when the situation in the society is calamitous and unlawful.
LAWS IN THE 21ST CENTURY
It is apt to state ab initio that law, its functions and purpose has been duly utilized in some activities of the century. However, considering the seemingly lawless society and most commonly unlawful activities that thrives in the century one can opined pessimistically that law has been unuseful and thereby irrelevant for the society in the century.
Though, the ineffectiveness of law in the 21st century is obvious, this is not as a result f the unavailability of adequate provision to subject matters neither is the laws themselves defective. Rather, studies have shown that laws as enacted are in that effect useless as it is devoid of force and form. Its enforcement and practical application renders the beautiful provisions of the law ineffective, inefficient and useless, in the dearth of it. The enforcement of laws lies within the powers of the Enforcement Agencies saddled with such responsibility.
Another factor is the application of these laws as they have been enacted without compromise based on whatever might be considered exigent by the Agencies. Laws are to be visible in the daily practices of the society. The fact that laws has been rendered ineffective by its application, it is sufficient to applaud the role it has played in the century.
The Constitution of the Federal Republic of Nigeria 1999 provides for the Fundamental Rights of the citizens of the country in Chapter IV. Therein provided in the chapter are the rights to life, dignity of the human person, personal liberty, fair hearing, private and family life, freedom of thought, conscience and religion, right to freedom of expression, etc. One of these rights is the right to freedom from discrimination as provided in section 42. This provision against discrimination also concerns discrimination based on sex. It is obvious the discrimination often directed toward women, particularly based on customary practices in the sharing in the estate of a deceased parent. Such discrimination which is by reason of the circumstances of the birth has been held to be repugnant to natural justice, equity and good conscience. Later after this decision the discrimination has been drastically reduced to such minimum that it only exist in the mind and cannot be expressly displayed. Also, the discrimination against women in the public and civil services as well as attainment of public offices has been reduces owing to the laws which, to that effect has been enacted.
The role of law as a tool for social engineering is laudable. Law has been used to infrastructurally better the society in the 21st century. Government policies are directed toward the betterment of the society by initiating projects and programmes that are directed toward satisfying the social needs for amenities. The construction of good roads that makes transportation easy and making country sides accessible alleviates the difficulty in migration from rural areas to urban areas. The electrification of the rural areas and building of technical and educational centre are laudable government policies. They enable the reduction of illiteracy rate while the rate of manpower development is increased and sustained.
Technically it is expedient to appreciate the role of law in ensuring order in the society. By the imperative and coercive provisions of the law toward his end is one that always ensures that citizens living in an area always live orderly. Also, among citizens in the neighborhood the law prescribes and describes the kind of relationship that should exist for the sake of orderliness. This order is evident in the contractual relationship between fellow citizens and in the common market transaction; also the Labour law has been a key player in restoring order and sanctity in the labour market. Because “the war between the profit maker and the wage earner is always with us” the law of work−labour law is there to equalize the unbalanced power between the employer and the employee. This orderliness has thrived in the 21st century.
Law has also been the means to the end of justice. Prevalent resort to self-help and retribution by the citizens has been on the increase. It is the inadequate application “justice” which is meted on a wrongdoer by another who has been wronged basically under the heat of provocation. To this effect the law provides means through which justice can be done to the wronged, the wrongdoer and the state by the creation of agencies of arrest, prosecution and adjudication.
The century is actually sophisticated which demand that the law must be itself sophisticated to properly contend with the issues that concerns it. When there is justice, there will be peace and progress. The law aims to punish and an offender in proportion to guilt and the injury to a victim. In the case of R V Sussex Justices, ex-parte McCarthy it was stated therein that “it is not merely of some importance, but it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” It means that justice is nothing to intervene with.
In the 21st century law has conferred legitimacy on the government in power. This is possible when the process to acquire such power is done in line with the provision of the law without which such government in power will never be legitimate. Everything within a state is legitimate if it so declared by law and will fail to be so if the law does not confer legitimacy on them. The 21st century states have been established and the government therein conferred with legitimacy.
The 21st century is the most advanced time ever been. The society is more sophisticated than is has ever been, actions, behaviours that questions the existence of law, the aggravation of crime rate is a test for the efficiency and efficacy of the laws.
Law has played the role of providing for freedoms and Fundamental Rights of citizens and the Human Rights. It also has provided against discrimination against women, even balancing the inequilibrium in the employment relations between the employer and the employee this relationship ought to be balanced equitably.
Law has provided social amenities to better the standard of living technically and educationally. People in the society can through government policies and programmes develop their skills to better their living standard. Though laws are faced with the challenge of ineffective implementation and enforcement, it is expedient to comment the role law has played in the 21st century.