Lecture 1

Origins and History of Equity

BY : UZA. HAWWA SHAZNA AHMED
2023 / FSL / VILLA COLLEGE
 Equity and its Purpose
What is equity?
◦ Equity means fair, just, moral and ethical. Equity emphasis
fairness, justice equality.
◦ Derived from Latin term Acquitas (Equality), equity serves to
reach as near as possible to natural or ideal justice.
◦ Thus, it is a branch of law which was established before
judicature Act 1873.
◦ Still the underlying ethos remains unaltered.
◦ The application of the law of equity is through equitable
maxims.
◦ Legal meaning: branch of law which, before the judicature Act
came into force, was applied and administered by the court of
chancery.
◦ Developed systems of law have often been assisted by the
Introduction of a discretionary power to do justice in
particular cases where the strict rules of law cause hardship.
◦ Rules formulated to deal with situations may subsequently
work unfairly as society develops.
◦ Equity is the body of rules which evolved to mitigate the
severity of the rules of the common law.
◦ Its origin was the exercise by the Chancellor of the residual
discretionary power of the King to do justice among his
subjects in circumstances in which, for one reason or another,
justice could not be obtained in a common law court.
◦ Principles of justice and conscience are the basis of equity
jurisdiction, but it must not be thought that the contrast
between law and equity is one between a system of strict rules
and one of broad discretion.
◦ Equity has no monopoly of the pursuit of justice. As Harman
L.J. has said, equitable principles are "rather too often bandied
about in common law courts as though the Chancellor still had
only the length of his own foot to measure when coming to a
conclusion.
◦ Since the time of Lord Eldon, the system of equity for good or
evil has been a very precise one, and equitable jurisdiction is
exercised only on well-known principles. - Allen's Law in the
Making (7th ed.), p.417
◦ In similar vein Lord Radcliffe, speaking of common lawyers,
said that equity lawyers were "both surprised and discomfited
by the plenitude of jurisdiction and the imprecision of rules
that are attributed to 'equity' by their more enthusiastic
colleagues.“ - Bridge v Campbell Discount Co. Ltd [1962] A.C.
600 at 626.
◦ Just as the common law has escaped from its early formalism,
so over the years equity has established strict rules for the
application of its principles.
◦ Indeed, at one stage the rules became so fixed that a "rigor
aequitatis" developed; equity itself displayed the very defect
which it was designed to remedy.
◦ We will see that today some aspects of equity are strict and
technical, while others leave considerable discretion to the
court. The field of equity is delineated by a series of historical
events, and not by a pre-conceived theory.
 Origin of Equity
◦ By the middle of the 13th century the law administered in
England,
◦ was in part Customary Law and Statutory Law.
◦ There were three kinds of Court in England. Such as-
1. The King’s Bench;
2. The Court of Common Pleas; and
3. The Exchequer
◦ The whole common people of England filed a suit before the
court of common pleas. The justice of the Court of Common
Pleas judged following the Customary Law and Statutory Law.
But the court did not provide proper remedy at all, and it was
not adequate remedy for the plaintiff or the defendant. The
law did not provide relief for all inconveniences. No provisions
were made for matters of natural justice.
◦ In such cases, a petition was made to the king-in-council to
exercise his extraordinary judicial powers and developed of
referring these petitions according custom. It was dealing
with these petitions that the ‘Chancellor’ began his judicial
functions, and the ‘Court of Chancery’ was established besides
the Court of Common Law.
◦ The ‘Chancellor’ acted according his judicial conscience or the
principle of natural justice. The principles and rules thus arising
though the administration of justice in the Court of Chancery
were called ‘Equity’ in contradistinction in Common Law.
◦ By early fourteenth century the king's common law was well
established and where it caused injustice, in individual cases
with consequent embarrassment to the king's conscience, the
task of providing a just remedy fell to the chancellor.
◦ In 1474 the first case was decided in the Chancery on the
◦ Chancellor's authority and thereafter his work expanded
rapidly. Thus, the Chancellor found new means of development
in the 14th century by way of the jurisdiction of “equity” or
rather “conscience” imparted by Chancellor, a jurisdiction later
to become the “Court of Chancery”.
◦ The Chancellor began to develop his legal power, and this was
more and more sought after by private citizens. These
individuals were aware of the procedural obstacles which
infected the common law system. He took care of individuals‟
petitions and based his decisions on principles stemming
from natural and canonical law.
◦ By the end of fourteenth century the Chancellor was
dispensing justice on his own authority from his base in
Westminster, his concern being still to remedy the rigid
common law position on the ground of conscience. The
petitions to the Chancellor grew in number throughout the
fifteenth century; consequently, the Court of Chancery, the
Chancellor's Court grew.
◦ In this way, two courts (Common Law Court and Chancery
Court) judged parallel in that time. In the 18th century Equity
was composed as a legal system and up to 1873 there remained
two separate systems of courts namely:
1. Common Law Court and
2. Chancery Court.
◦ But in 1873 both the courts were dissolved by The Supreme
Court of Judicature Act, 1875 and created a new unified High
Court of justice with the Chancery division- 1 of 3 divisions of
the High Court succeeding the court of Chancery as an
equitable body.
◦ There were two courts under The Supreme Court of Judicature
Act, 1875 and they were:
1. High Court and
2. Court of Appeal
◦ And the High Court had 3 divisions and they were:
1. The Chancery Division
2. The King’s Bench Division and
3. Probate, Divorce and Admiralty Division

◦ These courts assigned with the powers of enforcing all the

rights and remedies legal as well as equitable.
 Equity in Roman Law
◦ Equity in English law and ius honorarium (Roman Equity)
served the same end.
◦ Equity jurisprudence of Rome was developed by the labors of a
succession of a great juris consults who fill with their writings
between the reign of Hadrian and the reign of Alexander
Severus. They recognized the theory of a set of legal principles
to replace the rigid law and called it equity.
◦ The instrument through which equity were infused into Rome
law was the office of the Praetor (consul, magistrate). His
special function was to administer justice in the city.
◦ He was the chief equity judge as well as great common law
magistrate and he had enormous power to interpret and to
amend laws in accordance with the rules of natural justice
(naturalis aequitas).
◦ Thus, old rules of Civil law directly or indirectly repealed
through him without any further legislation.
 Equity in Islamic Law
Istihsan
◦ Istihsan has been sought as a tool to derive judgments for new
issues that has come into existence through out the
development of the society.
◦ This concept is highly developed in common law countries as
equitable laws that are provided to the parties where the law is
rigid, and the judgment is considered unfair or where the laws
are strictly applied etc. Unlike common law equity, isthihsan
does not recognize any other laws over the divine law
(shari’ah), hence it remains as an integral part of Shari’ah.
 Meaning of Istihsan
◦ Istihsan literally means, to “approve” or “to deem something
preferable”. It is derived from the word hasuna which means
being good or beautiful. According to Bazdawi, Istihsan is
“moving away from the implications of analogy to an analogy
that is stronger than it, or it is the restriction of analogy by an
evidence that is stronger than it”. According to Al-Sarakhsi
Istihsan is a way of looking at the consequences of the
application of two legal rules and the selection of one that
creates ease and facility.
 Meaning of Istihsan
◦ In the technical sense, Istihsan is defined as a method of
exercising opinion in order to avoid any rigidity and
unfairness that might result from the literal enforcement of
the existing law. As the enforcement of the existing law may
prove to be detrimental in certain situations, the only way to
attain fairness might be by departing from the existing law. It
can also mean the creation of an exception to a general
principle due to a stronger evidence when the general
principle is based upon analogy.
 Examples of Istihsan
◦ Judgment in the Absence of the defendant and the Ex-Parte
Judgment:
◦ According to hadith of the Prophet (SAW) narrated from „Ali bin
AbiTalib; a Muslim judge should hear arguments from both the
disputing parties. However, in another Hadith the Prophet (SAW)
was reported to give judgment to hind bint’utbah, wife of Abu
Sufyanin his absent, and Caliph Umar and Uthman have decided
the same. Therefore, it is an established settled law that the judge
is permitted to declare judgment in the absence of defendant
where he is unavailable.
◦ Istihsan is an efficient method of legal reasoning that ensures
analytical consistency in the system and helps the jurist to
identify general principles and exceptions, by giving
importance to the consequences of the decision.
◦ Istihsan has played an important role in the adaption of
Islamic law to the changing needs of the society.
◦ Therefore, considering the change of society and desire to find
solutions to the new problems tools such as istihsan play a
vital role in order to derive rules which are not explicit in the
main sources (qur’an, sunnah, ijma’), equally eradicating the
hardship that some of the strict rules might bring with it.
Thank You! ☺
Any Questions?