Monday, 26 March 2012

Issues/Concepts in Hindu Law 2: Socio-legal classifications of law

This post will explore how Moore and Ehrlich's socio-legal understanding of law can  be applied to Hindu law.

Moore talks of law being a semi-autonomous field which is quite clear from the Hindu law case study. In pre-classical times, both Vedic gods and individuals were not completely autonomous they relied on each other, on rita and ancient customs to paint their daily lives with showing the semiautonomous nature of law. In the golden era of self-controlled order, this changed because now the law "dharma" could not be completely autonomous as it was dependent on circumstances, political and economic environment, the person's caste (varnasradharma) etc. In the anglo-hindu era there is further evidence for this, the state had to learn the customs of the people to make law somewhat realistic and this official law very slight it may be, but still affected how people practiced customs. Modern India today is the best example because it shows how the state is not completely autonomous although it may be sovereign as it had to base much of it on pee-existing customary laws. 

Ehrlich talks of a living law which is also quite evident because despite there being periods of no state or authority figures and when the British claimed authority there has been law that governed people (dharma) throughout all these periods and so it is quite clear that a living law does exist and you can't get a better example than this!

Tuesday, 20 March 2012

Law, History & Equity

This post will explore a bit about equity...

First the definition of 'Equity' is this: a source of law based on principles of fairness and natural justice.

Historically, the King of England would oversee and resolve disputes. You could only take a dispute to the King if you purchased a writ and over time these writs become fixed and inflexible and only parliament could supply them. It was the Provisions of Oxford 1258 that restricted the availability of writs. This rigidity and lack of remedies (for example only  damages were the outcome of going to court) forced people to petition to the King for natural justice. The petitions were given to the Chancellor to manage as it was the chancellor who was believed to be the conscience of the King. The petitions usually had one of the four allegations: (i) common-law is defective; (ii) the remedy of the court, damages, was not satisfactory and inadequate; (iii) the defendant was too powerful, unequal bargaining power existed and; (iv) court lack jurisdiction where non-domestic people where involved like foreign traders.Given the mass of petitions that were received, the chancellor created a court, Court of Chancery, to resolve these issues by applying flexible customary rules.
At first the chancery court was very unpredictable as it didn’t follow any basis of law, just merely the chancellor’s judgement and eventually these did form a precedent but anyway between 1673-1828 guidelines were prescribed and these were known as equitable maxims. Examples of equitable maxims include: (i) He who comes to equity must come with clean hands i.e.should not be trying to use equity for unfair and unjust reasons e.g. D&C Builders v Rees [1966] 2 QB 617; (ii) Equity looks at intention not the form i.e. equity will look at what intention has the person come here with not what they have done or history etc; and (iii) He who seeks equity must do equity i.e. equity must apply both ways its a kind of negotiation e.g. Chappell v Times Newspapers [1975] 1 WLR 482.
Examples of equitable remedies include: (i) specific performance so to compel a party to fulfill their contractual obligation e.g. Beswick v Beswick [1967] 2 All ER 1197; (ii) rescission so a resolution that brings the parties as far away as possible from original contractual position e.g. Redgrave v Hurd (1881) LR 20 ChD 1; and (iii) injunction so to cease a party from doing certain acts e.g. Lumley v Wagner [1843-60] All ER 814.

The Chancery court was successful in fulfilling its purpose of dispute settlement. However, there were conflicts with the regular Common law courts, outcomes were unpredictable and it suddenly had also had president over where common law and equity clashed. The King clearly stated the president of equity in the Earl of Oxford’s case (1615) 1 REP Ch 1 where the chancery court found the common law courts to have committed fraud and they put an injunction on the common law court. This dissatisfaction caused by the Chancery Court can be seen in comments such as ‘equity varies with the length of the chancellor’s foot’ (John Seldon, jurist). So Parliament put an end to this in 1873-1875 by creating the Judicature Act which stated that it the common law courts’ responsibility both to practice equity as well as common law reasoning. This tension between two sets of laws even in the one court has given scope for judicial creativity for making law.

It is important to note that equity itself is not a self-sufficient system, as Maitland says it is a ‘gloss’ on the common-law system, bettering the defects of common law. It is also important for studying precedent because it shows the value and need of precedent. Precedent which is a form of equity has been created to rectify some of issues and hardships associated with a common law system.

Sources of English Law

Here is a little table I put together on Sources of English Law!


Case Law
Judicial decisions, precedent
To create law on a flexible case by case basis. However, written legislation has the power to override these sources.
  • Flexible
  • Promotes fairness and precedent can be consistent and certain.
  • Complexity and volume of decisions
  • Binding precedents can undermine flexibility

Proposals or Draft legislation
Parliamentary debates, command papers 
These are the origins of law which is today implemented and practiced 
  • Platform to put forward new innovative ideas.

  • Takes a lot of time and it doesn’t bring about change it is just in process of trying. 

Primary Legislation
Acts, Statutes
These are bills and proposals which have been accepted by both Houses of Parliament then given a Royal Assent.
  • Democratic as it is made by parliament 
  • Senior people work in parliament so they can bring their wisdom and expertise.
  • Slower and wastes parliamentary time
  • Inflexible and difficult to change
  • Now bound by EU
Secondary Legislation
Delegated legislation, Statutory Instruments
These are secondary form of legislation, delegated legislation is supplements to the act or statute set made by other parties not parliament. Statutory instruments is additions and amendments to acts/ statutes.
  • Speed of implementation
  • Saves Parliamentary time
  • Access to expertise
  • Flexibility
  • Lack of accountability
  • Lack of scrutiny of proposals for such legislation
  • Sheer amount of legislation
European Law
Directives, treaties, ECJ
European law is now given precedent over domestic law as we are signed up to them.
  • Following European Law simply reiterates how sophisticated our system is. 

- Can be too interfering 
International Treaties
Anglo- Japanese Alliance 1902
International source of law which again if conflicts with domestic law is given priority
- Promotes peace and is way in which the legal systems of the world are united.
  • It can sometimes interfere with domestic case dealings 

Conventions, common law
This is oldest source of law and was there to ensure that the law matched what people peopled
- Matches people’s ideas and expectations
  • Continually changing, hard to codify and verify.
  • For international commercial law can be problematic.
European Convention on Human Right
The right to a fair trial
Separate to the European Union and allows member states who are signed up to take Human Rights cases to them
- Promotes human rights principles and provides opportunity for states to fulfill them. 
  • Sometimes can interfere with domestic cases too much such as Abdu Qatar case.
Equitable principles such as creation of mortgages
Developed to mitigate the harshness of the common law and the operation of the common law courts
  • Promotes natural justice and fairness.
  • Also spurs economic growth
  • Law becomes intangible and something too complex to grasp.
Books of authority
judicial tradition books of antiquity created prior to 1765
When law reporting was in its infancy this was created and it has some works from senior members of the judiciary.
  • Wides the prospectus of law thus making it more applicable.
  • It is recognized as a minor source of law and it is also outdated.