The Development and Function of Equity in the English Common Law Tradition

Abstract

The English common law tradition, which encompasses several distinct sub-traditions, is one of the two major legal traditions of the contemporary world. Like the civil law tradition, it too has had a remarkable influence around the world, having been adopted by a large number of countries, including countries that are socially and culturally very different from England. Indeed, the reception of English law in diverse socio-cultural settings is a testimony to its genius and its adaptability, especially where this reception was not imposed but voluntarily embraced. Initially, the reception of English common law was the result of British colonization and the political dominance of the British empire from the eighteenth through the early twentieth century. It was a principle of English law that, in a settled colony, the colonists would bring with them and follow the laws of their home country. Countries such as Australia, Canada (except for Quebec) and New Zealand, which were once part of the British colonial empire, inherited the English common law system and continue to apply its legal philosophy and principles in their current legal systems. Other countries sharing, to a greater or lesser extent, the heritage of the common law include the United States, Ireland, India, Pakistan, Bangladesh, Malaysia, Singapore, Hong Kong, South Africa, Nigeria and Kenya. Much of the law in these countries has its basis in old precedents, stemming from the time when they were part of the British empire, although their legal systems grew apart since these countries became independent. Remarkably, in many of these countries, this uniquely English set of legal sources, institutions and norms co-existed with indigenous cultural, religious and legal traditions, and what may be described as ‘hybrid’ systems often emerged.