My last post described four different senses with which we use the term common law and how to translate them. I explained that I use the word sense deliberately (and not as in meaning or connotation) and that we’re still working our way up to fully understanding why. For now, we’re learning about the Common Law tradition and the key terms that all legal translators must know if English is one of their working languages.
Now we’re going to learn about a second concept that is also characteristic of the Common Law tradition: equity—and it’s a hard one. The concept of equity is deeply connected to that of common law, so if you haven’t read my previous post and you’re not already familiar with the multiple meanings of the term common law, read that one first. These posts are written as a series that starts with the basics and moves up from there, so be sure to follow along in order.
Let’s hit refresh: in my last post, I wrote that in its narrowest possible sense, common law means, “the law found in or traced back to the decisions of a particular group of courts which existed in England from the early Middle Ages until the late nineteenth century—the King’s courts, also referred to as common law courts” (Cartwright 2007, 2013). And in that narrow sense, common law can, to some extent, be understood in opposition to the body of law deriving from the courts of equity.
To thoroughly understand both concepts, we have to first distinguish between common law courts and equity courts. During the Middle Ages, when litigants in England felt that the common law courts failed to give redress in certain types of cases, they petitioned the King, who was a ‘fountain of justice’ for extraordinary relief. The king, through his Chancellor, eventually set up a special court called the Court of Chancery to handle these petitions. The Chancellor, “decided cases according to what ‘equity’ required; a decision of ‘conscience,’ based on the Chancellor’s discretion to find an appropriate result, and an appropriate remedy, to resolve the case in hand even if this meant going beyond or even directly against the law as it would be applied in such a case by the common law courts” (Cartwright 2007, 2013). Over the course of centuries, the courts of equity developed rules by reference to which they would grant remedies. These rules eventually, “hardened into law and became a regular part of the law of the land” (Williams 1982, 2010).
The system continued this way for a very long time. Finally, in the 1870s the Judicature Acts abolished the old common law courts and the Court of Chancery and, among other things, created a single Supreme Court of Judicature, which administered both law and equity, establishing that in the event of ‘conflict or variance’ between the rules of equity and the rules of common law, the rules of equity should prevail.
Of course the story doesn’t end there. But for the purposes of this post, we’re going to end our mini history lesson here. Not because what came after doesn’t matter, but because I want to direct your attention to what makes this bit of history relevant for us as legal translators and how it affects the language we work with.
In English law, the result of the historical process briefly described above, “was the creation of rights which were not known in the common law courts, as well as the creation of remedies which were different from those available in the common law courts and which were awarded in order to protect not only the new equitable rights but also the established common law rights” (Cartwright 2007, 2013). In plain language, this means the courts of equity created remedies that supplemented common law remedies, giving rise to concepts we’ll need to translate, such as specific performance, injunction, and rectification. And you'll come across such problem terms whether you work with English UK or English US.
Even though equity courts can be traced back to Middle Ages England, they weren’t exclusive to that time or place. As the Common Law tradition expanded to other parts of the world, so did equity courts. In fact, the US once also had separate courts of law and equity in many jurisdictions and those courts too had separate rules. But most jurisdictions in the US eventually merged their courts of law and equity and this meant some merger of rules (Bray 2016). In the case of the US in particular, some scholars argue that the most significant distinction between common law and equity is the set of remedies they each offer. I’d argue it’s a lot more complicated than that, but that far exceeds the scope of this post.
What you need to know as a translator is that there is specific language associated with these remedies, such as equitable estoppel, equitable indemnity claim, and equitable relief. And the word equitable in such cases is signaling the system of rules and principles mentioned above. As with all problem terms, there’s more than one correct option and translators can follow different, equally valid, criteria. Let’s look at some examples:
But the story doesn’t end there. Equity can be used in many other ways—it is after all, a heavily-nuanced, difficult term to translate. So stay tuned for my next post!
In this post, we took a brief (and very simplified) look at the concept of equity. We learned that:
But we’re nowhere near the end yet. We’ll continue to explore the concept of equity in my next post in this Back to Basics series.
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Becerra, Javier F. n.d. Dictionary of United States Legal Terminology – English/Spanish [online].
Bray, Samuel L. 2016. "The System of Equitable Remedies." UCLA Law Review 15-24.
Cabanellas de las Cuevas, Guillermo, and Eleonora Hoague. 2019. Diccionario Jurídico inglés-español.Buenos Aires: Editorial Heliasta S.R.L.
Cartwright, John. 2007, 2013. Contract Law: An Introduction to the English Law of Contract for the Civil Lawyer. Oxford: Hart Publishing Ltd.
Friedman, Max Paul. 2014. "Antiamericanismo y la política exterior estadounidense [en línea]." Biblioteca Digital de la Universidad Católica Argentina. Accessed June 27, 2020. https://repositorio.uca.edu.ar/bitstream/123456789/6550/1/antiamericanismo-politica-exterior.pdf.
Garner, Bryan A. 2009. Black's Law Dictionary. West Publishing.
Williams, Glanville. 1982, 2010. Learning the Law, 14th Edition. Edited by A.T.H. Smith. London: Sweet & Maxwell.