For reasons I will not delve upon, one of my translation courses involves a very small yet important basic knowledge on some assorted bits of data concerning law.
Don’t ask, suffice to say my curriculum is messy.
However, I’m having some trouble with two basic points of foreign law, made no easier by how you dicks like to have the most complicated naming conventions short of medicine careers. So here they are:
Civil Law Vs Common Law. I get the basic distinction, decisions made based on a codified law Vs decisions bound to stare decisis. The problem is identifying which the fuck is which at times, since there’s so many other names popping up all the time: Continental Law, Roman Law, Case Law, Statutory Law, etc. As far as I can make it out, Roman Law inspired Civil Law, which is also called Continental Law, which is related to Statutory Law, while on the other hand Case Law is also Common Law… is any of this close to correct?
Equity. I know the historical background, but given the lack of present monarchy that actually does any work, I’m drawing a blank on how this works in present as opposed to courts of law. Is it a different court altogether with different competence, or is it just the name you give to an application of law when a court commands someone to do/stop doing something as opposed to just rewarding monetary compensations?
Basically right. The legislature formulates codes at civil law, so the judiciary is solely relegated to interpreting the law. At common law, judges formulate law based on social norms and public policy. Stare decisis binds judges of lower courts, for instance, a U.S. Court of Appeals is bound by Supreme Court decisions. Judges are also bound by stare decisis from their own past decisions, but there are dozens of reasons this is ignored all the time.
Continental law is basically civil law. It was inspired by the Code of Justinian, the Roman Emperor. Several hundred years A.D., Justinian took all the competing threads of Roman law, “answered” all the disagreements between them, and codified the results. The Napoleonic Code was similar to this, and much of modern civil law derived from that.
Common law is essentially what Rome had before Justinian. Different courts applied different standards of law. For example, if multiple people caused property damage, some judges divided damages equally among the group; others held each liable for the full amount; others held that any could be sued individually for up to the full amount, but that the total recovery could not exceed the full amount. In the U.S., the highest court of each state tends to have settled on one rule for any given issue.
The U.S. has moved toward civil law as legislation has accumulated, but many areas of law are still dominantly common law. Common law also “fills in the gaps” in ambiguous statutes.
Equity. I know the historical background, but given the lack of present monarchy that actually does any work, I’m drawing a blank on how this works in present as opposed to courts of law. Is it a different court altogether with different competence, or is it just the name you give to an application of law when a court commands someone to do/stop doing something as opposed to just rewarding monetary compensations?
Equity was originally the “equitable conscience” of the king of England, who would alter rulings at law that struck him as inequitable. He soon delegated this power to the chancellor, who delegated the authority to other chancellors. That’s how courts of chancery began.
As equity and law developed, the “dividing line” gradually emerged that law involved monetary damages, while equity involved non-monetary remedies like injunctions and declarations. Courts also found excuses to award money in equity, calling it “restitution” or “reparations” or the like, rather than “damages.” Legal cases were tried by juries, while equity remained solely in the chancellor’s conscience. In the early 20th century U.S., the Federal courts of equity and law were united. Most state courts followed suit, with notable exceptions like the Delaware Court of Chancery. I believe the same happened in England.
The main significance of equity now is that, when a judge is deciding whether or not to award an injunction, declaration, or so forth, no jury is necessary. These are known as “equitable remedies.”
Also, if you go to a state like Delaware, the courts of law and equity are physically separate. If you want an equitable remedy, you go to the Court of Chancery.