The Path Of Equity

Based on two mainlines:the sanctification & secularization of Equity; and the struggle and compromise of Sollen-equity & Sein-equity, from the aspect of History of Anglo-American legal thoughts, this dissertation roughly describes the whole developing process of Equity:its rising, transformation, culmination and decay. It draws the outline of the development of Equity:from Devine Will to Mortal Will, from Natural Law to Positive Law, and from Moral Law to Regulated Law. Thus, it proposes that the process of Equity is a process of judiciary, regulation or moral legalization. Meanwhile, it puts forward the problem of the developing process of Equity in China.This dissertation consists of three main parts:introduction, body and conclusion.The body comprises four chapters as follows:First, the author introduces the rising of Equity. The background, causes and marks are dissertated respectively to show how the way of Equity is formed.Section one discusses two important backgrounds of the rising of Equity:the Pope revolution and the maturity of Common Law. The author believes that the Pope revolution was the historical premise of Equity, while the maturity of Common Law was the legal premise of Equity. By discussing the premises, the author not only connects Equity with the Pope revolution, but lays it in the history of the system of Anglo-American Law, so that the research vision of Equity is widened, its research significance is deepened and the narrow view that the inflexibility of Common Law was the cause of Equity is broken.Section two discusses the three causes of the rising of Equity:the inflexibility of Common Law, the intervention of the king and the relief from the chancellor. The author believes that the inflexibility of Common Law was the legal cause of the rising of Equity, that the intervention of the king was its political cause and that the relief from the chancellor was the fundamental cause.Section three discusses the three marks of the rising of Equity:the conscience of the chancellor, the occurrence of special relief program and the establishment of the special Judicial Jurisdiction. The author believes that the establishment of the special Judicial Jurisdiction was the fundamental mark of the rising and formation of Equity, for it vested the property of law in the conscience of the chancellor and the special relief program. The conscience of the chancellor is a kind of substantive law, or we can say it's a kind of natural law or sollen law or sacred law; while the special relief program is a kind of procedural law, or a kind of human law or positive law or law of mortal will. Putting the two together forms Equity and it is a kind of dual Equity.Next, the author discourses on such aspects as the origin of transformation of Equity, the identity change of the chancellor and the growth of the court of Equity to disclose how the way of Equity shifted and developed.Section one analyses the origin of transformation of Equity, that is the England Reformation and the thriving of secularism of law. The author insists that after the England Reformation in 16th century, Equity made its historical transformation-from the Divine Will Equity or Divine Law to Mortal Will Equity or Moral Law. The driver of that transformation was the secularism of law, which was the result of the Reformation.The identity change of the chancellor was the first mark in the realization of transformation of Equity. Two most important chancellors were mentioned in this section. One was Thomas Cardinal Wolsey, father of Equity and a prominent representative of archbishop chancellor. The other was Sir Thomas More, the first secularistic chancellor and a man of morality. The two chancellor were the representatives in the process of identity change from bishop chancellors to secularistic law experts.The institution independence and the change of purpose of the court of Equity, especially the growing up of the court of Equity was the second mark in the realization of transformation of Equity. In this part the author explains how the chancery developed to the court of Equity and how the court of Equity changed its purpose from conscience relief to social control. Moreover, the thriving of special court of Equity, of which Star Chamber was a representative, had profound influence on the development of Equity.Then, it demonstrates respectively the splendor of Equity; the formation of the entity of Equity; the result of the expansion of Equity and the occurrence of American Equity to reveal how the way of Equity expands into a broad way.The author believes that the victory of the court of Equity in 1616 was the most splendid moment in the history of Equity. Besides renowned Francis Bacon, Lord Nottinghanm, Lord Hardwicke, Mansfield and Lord Eldon were the most famous person bringing equity to the way of regulation.With the appearance of the scientific theory of law, the moral Equity theory turned into technical Equity theory. The pushers of that change are the common jurists, with Edward Coke and Matthew Hill as the representatives. While the appearance of the Equity maxim and the formation of the rule of precedent of Equity was not only the application of technical Equity theory in judicial practice, but also the mark of the formation of the entity of Equity. This shows that from the 14th-15th centuries to the 17th-18th centuries, the conscience, being the entity law, had developed into a kind of tangible entity law. Thus, the previous Equity which lack of concrete content and was characterized by procedural law had totally changed into a modern Equity with concrete content and programmed regulations.American Equity occurred after the nation's independence. The puritans thought damages caused by personal folly or carelessness should not be relieved, so they objected to Equity. Later, with the development of society and law, some of them began to support Equity from the standpoint of pragmatism. Thus, two denominations occurred:one held the worst view; the other held the best view. That is also the profound reason why different states in America hold entirely different attitudes toward Equity.Finally, the author discusses the decadence of Equity. In this chapter, the author explains the process of its decadence and collapse by quoting some plots of Charles Dickens'Bleak House and by introducing the judicial reformation in both Britain and the U.S. in the 19th century and the current situation of their equity. Moreover, the author underscores the profound influence on Equity and even the Common Law as a result of judicial reformation and reveals how the Equity fell into the decadence.Considering that Charles Dickens'childhood was deeply affected by Equity and that the English writer once worked as a clerk in a Court of Equity, the author believes that all of these motivated Charles Dickens to compose the fiction of Bleak House and somewhat became the material of the novel. In a sense, the fiction became a way for the masses to learn about Equity. As was demonstrated by the facts later, the Bleak House became a propaganda novel on judicial reformation in 19th century. The delay of Equity was a result of limitation of civil judicial system and the interior flaw of Equity. The lack of certainty, deficiency of chancellor and adherence to precedent were the main evidences of interior flaw.The author pointed out that the collapse of Equity can be traced back to the period when it was aggressed by Passivism, whose spokesman are Jeremy Bentham and John Austin in Britain and James Kent, Joseph Story, as well as David Dadley Field and Christopher Langdell in America. Jeremy Bentham and John Austin declared that the Equity was full of morality and lack of stability. Thus, it is the positive laws but not the sollen or moral equity can be called Law. James Kent and Joseph Story amend the American Equity on the position of positive laws, while David Dadley Field paved a path for the codification of American laws and Christopher Langdell established the system of Judicial Formulism or Begriffs Jurisprudence. Therefore, the judicial reformation in Britain in the year 1873 as well as in American at the end of the 19th century is a certain consequence of the development of the judicial positivism theory. After the judicial reformation, the Court of Equity in England became to Chancellor Court, while in the U.S., Most of Courts of Equity were combined with court of common law expect in a few states. Heretofore, the positive equity had been mixed with common laws, which suggested the collapse of the Equity system.The author holds on the opinion that the collapse of the equity refers to the process which the dualistic equity changed into a unitary one, and the process which can also be regarded as one in which the sollen equity or moral equity got collapsed and the sollen equity inclined to mix with common laws. The dualistic equity changing into a unitary equity, namely, the sollen or moral elements being erased, means the lost of soul or the spirit of Equity. Then, the classic equity actually is dead. So the current equities and after the judicial reformation are actually common laws. The decadence of the equity at the same time is the victory of the positive laws lead by Jeremy Bentham and John Austin in the 19th century. However, the positive laws which have thrown away the sollen or moral value elements bring to our society a stronger strike.Positivism is a fundamental view in the contemporary society of Britain and America and the two countries have regulation-orient formal rule of law accordingly. The jurisprudence in 20th century came to a crisis because of denial of the essence of sollen or morality. However, after World Warâ…¡, analytical positivism jurisprudence, nature jurisprudence and social jurisprudence stood like the three legs of a tripod. As a result, the whole western jurisprudence had a tendency featuring from analysis to integration and from form to substance. Though it was far from revival of Equity, it explains why it doesn't disappear so far.The author insists that the process taken by the equity from its rising, transformation, culmination to its decadence has paved a way to justice or regulation or demoralization. From the stand point of judicial view, the way lead by equity is a way to justice, but was declared to a dead end as the abolishing of the Court of Equity. From the point of legal view, it is also a way to regulation, and till now Britain and America is still on this way. And from the moral point of view, which is opposite to regulation one, it is a way of legislating of moralities or getting rid of moralities, which appeared in the 17th and 18th centuries when the positive equity emerged and now the way is push up to its climax to in the judicial reformation in the 19th century and now it has change into a way of destroying moralities.Generally speaking, the splendor and decadence of Equity is great experiments in establishing a tangible and affirmative way to regulation for the society by English for the purpose of dominate the nature and moralities. It enlightens us with the questions as follows:How to look on certainty of law in the booming modern society? How to define the status and functions of morality? How to tackle the relationship between morality and law? How to balance discretion and practising judicatory strictly, especially in a county like China with great moralities? Pondering these questions thoroughly, we may have the answers to the last two issues:What are the problems of the legislation? What on earth is the path of Equity?...