RSS FeedThe 12 Equitable Maxims
The twelve equitable maxims are:
1. Equity will not suffer a wrong without a remedy.
2. Equity follows the law.
3. Where there is equal equity, the law shall prevail.
4. Where the equities are equal, the first in time shall prevail.
5. He who seeks equity must do equity.
6. He who comes into equity must come with clean hands.
7. Delay defeats equities.
8. Equality is equity.
9. Equity looks to the intent rather than the form.
10. Equity looks on that as done which ought to be done.
11. Equity imputes an intention to fulfil an obligation.
12. Equity acts in personam.
Prussian Legal System the Best (according to 19th c. Japan)
Although the current Japanese legal system is based on the Anglo-American model, there was a time prior to its conquest in WWII where they used a system modeled after Germany.
Background
Prussian dominance can probably be traced back to amity and commerce treaty signed in 1861 between Prussia and Japan, structured with a unilateral most-favoured-nation clause benefiting the former.
This influence grew over the early part of the Meiji era (1868-1912) with attempts to modernize Japanese military and industry.
Constitutional Reform
Following the Satsuma Rebellion, where traditionalists attempted to oppose modernization efforts, some different forms of representational government from around the world were examined.
[youtube]http://www.youtube.com/watch?v=bQHAAb7H7VQ[/youtube]
Tom Cruise’s “The Last Samurai” is loosely based on the Satsuma Rebellion
A British-style model was advocated early on by Okuma Shigenobu of the Constitutional Progressive Party.
Instead, a study was launched in 1882 to examine legal systems abroad, led by Ito Hirobumi.
Andrew E. Barshay writes in State and Intellectual in Imperial Japan,
Ito acutely recognized the need for a state apparatus capable of realizing a strong constitutional order that simultaneously placed the source of its legitimacy out of mortal reach.
French and Spanish models were rejected as too despotic, and the American and British were considered too liberal and disempowering of the monarch.
Hirobumi decided to spend his time in Prussia (now Germany), and decided their model was superior to the others.
Japan even sent academics abroad to study at Prussian universities, and briefly based Kyoto Imperial University on the Prussian educational system.
Objections and Demise
Not all Japanese were ecstatic of these specific initiatives.
Uchimura Kanzo wrote in 1898,
One of the many foolish and deplorable mistakes which the Satsuma-Choshu Government have committed is their having selected Germany as the example to be followed in their administrative policy. Because its military organization is wellnigh perfect, and its imperialism a gift of its army, therefore they thought that it ought to be taken as the pattern of our own Empire. . . . Germany is certainly a great nation, but it is not the greatest, neither is it the most advanced. It is often said that Art, Science, and Philosophy have their homes in Germany, that Thought has its primal spring there. But it is not in Germany that Thought is realized to its fullest extent. Thought may originate in Germany, but it is actualized somewhere else. The Lutheran Reformation bore its greatest fruit in England and America.
German expansion into the far east led to cooling of relations between the two countries.
Military alliances in WW II strengthen relations again, but the defeat of both resulted in restructuring along the lines of the occupying Allied forces.
German influence over contemporary Japan remains limited, though the Crown Princess of Japan today does speak German.
Resources
Shinya Murase. (1976). The Most-Favored-Nation Treatment in Japan’s Treaty Practice During the Period 1854-1905. The American Journal of International Law 70(2):273-297.
Andrew E. Barshay. (1991). State and Intellectual in Imperial Japan. The Public Man in Crisis. University of California Press.
Divisions among Private Law
Private Law can be divided into property and obligations. The latter is further divided into contracts, torts, and unjust enrichment (restitution).
The bulk of first-year courses (property, contracts and torts), are therefore comprised primarily of private law, or regulations governing the relationships between individuals.
Divisions among Contracts
The major areas of study in Contracts are enforceability, excuses for non-performance, remedies, and effects on third parties.
Components of enforceability typically include a bargain, agreed upon exchange, and constituent parts of a bargain.
Excuses for non-performance are usually characterized by mistakes, unfairness, public policy, or non-performance by the other party.
Two types of remedies exist: specific and monetary, the former consisting of an order of performance, the latter seeking compensation through money. Contracts can be distinguished from Torts in that it seeks to restore the plaintiff’s position to that of if the contract was performed, whereas Torts simply seeks out-of-pocket losses.
Areas of study within the effects on third parties include agency, or the power of one person to act on behalf of another, and assignment, the transfer of contractual rights.
3 Types of Divisions among Torts
Torts can be divided according to the defendant’s state of mind into intentional wrongs, negligence, and strict liability. Intentional Torts include assault and battery, trespass to land and goods, and conversion and detinue.
Torts can also be divided by the interests of the plaintiff: injury to the person, injury to the property, injury to the reputation, and interference with the use of land.
Yet another way of dividing Torts is by the defendant’s actions, such as liability of animals, liability for products, liability of occupiers and owners of property, and employer’s liability.
Forget About Restitution (for now)
Unjust enrichment, or restitution, is typically not covered in first-year courses, typically because it requires a thorough knowledge of the basics of Private Law.
Although not studied in depth at this time, the main categories of unjust enrichment are mistake, benefit through wrongful act or breach, benefit under compulsion, and emergent situations.
Preparing for the Socratic Method
The Socratic Method was first used in law schools at Harvard, starting the 19th c., and is now employed in most major law schools around the world.
Joseph Bartosch describes to purposes for using the Socratic method:
- strict classical approach to eliminating false philosophical presuppositions by exposing logical errors in thinking
- utilizing the simple question and answer method in order to cultivate critical thinking in a broad variety of areas
The approach is used to “developing higher order thinking, conflict-resolution skills, and conceptual applications.”
Kemp provides some tips on how to develop this critical thinking in our everyday life:
THE SOCRATIC METHOD FOR THINKING
- Locate a statement confidently described as common sense.
- Imagine for a moment that, despite the confidence of the person proposing it, the statement is false. Search for situations or contexts where the statement would not be true.
- If an exception if found, the definition must be false or at least imprecise.
- The initial statement must be nuanced to take the exception into account.
- If one subsequently finds exceptions to the improved statements, the process should be repeated. The truth, in so far as a human being is able to attain such a thing, lies in a statement which it seems impossible to disprove. It is by finding out what something is not that one comes closest to understanding what it is.
- The product of thought is, whatever Aristophanes insinuated, superior to the product of intuition.
[youtube]http://www.youtube.com/watch?v=z2sMJwxLd-M[/youtube]
www.allaboulawschool.com discusses the Soctratic Method using interviews and experiences of real students.
Archibald MacLeish spoke of his experience at Harvard Law,
The Socratic spark which set insatiable fires where no flame was seen before…
Beyond the spark was a vision – the vision of the human mind, the great tradition of intellectual past which knows the bearings of the future.
[youtube]http://www.youtube.com/watch?v=FCzVhmkIzFk[/youtube]
The Trial of the Socratic Method features students from Harvard Law
Of course, using cases to critically analyze and discuss concepts of law is probably the best preparation of all. Within weeks we intend to start posting cases and anticipate your contribution.
