The “common law” & how it’s different from “equity” & “statutory law”
The “common law” is made up of those principles and “causes of action” relating to the government, property rights and personal rights including physical security which derive their authority solely from usages and customs or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs. It is law which does not rest for its authority on laws or regulations enacted by legislatures, but rather on court-established law. Put alternatively, the courts have said that `X situation gives right to Y cause of action’; there is no specific law passed by parliament or the legislature which mandates that `X situation gives right to Y cause of action’. A court will have found the right and other courts will have accepted it and developed it with legal precedents. Judges examine the facts, check previous cases to see if a principle of the common law applies to them, and then apply such precedents to the those facts, granting judgment based on their view of the strength of the facts and the applicability of the principles.
Common law v. statute law v. equity … and different courts?
Duhaime’s legal dictionary (an excellent source of in-depth definitions and explanations) has this to say about the differences:
Equity law developed after the common law to offset the rigid interpretations medieval English judges were giving the common law.
For hundreds of years, there were separate courts in England and its dependents: one for common law and one for equity (aka Chancery) and the decisions of the latter, where they conflicted, prevailed.
It is a matter of legal debate whether or not common law and equity are now “fused.” It is certainly common to speak of the “common law” to refer to the entire body of English law, including common law and equity.
While it might be a matter of debate whether or not common law and equity are fused it is important to note that the courts are: Ontario does not separate its courts of common law and equity. The Superior Court of Justice, the Divisional Court, the Court of Appeal and Canada’s Supreme Court are all courts which can and do apply statutory law and common law and equity.
Links to the three posts on this topic: Common Law; Equity; Statutory Law.
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