LEGAL ASPECTS OF THE ENVIRONMENT 603
By amending their complaint, ACLU, on behalf of the other
individuals concerned personally with the blast, remained in
the action. Subsequently, the District Attorney of the Ninth
Judicial District of the state of Colorado attempted to bring
an action in the state court on public nuisance theory, but that
action was summarily transferred to the US district Court
the consolidated with the COSCC and ACLU actions at the
request of the Atomic Energy Commission.EQUITYThe truly unique element of the Anglo-American is the con-
cept of equity. Equity jurisprudence as a system of remedial
law evolved from a number of common sources. It can be
found in the Talmud and the earliest writings of the Roman
law. It can be found today, though it is somewhat less than
obvious, in the current system of civil jurisprudence derived
from the Code Napoleon and used throughout most of
Europe.
In its most elementary form, the fundamental principle
of equity jurisprudence is the command: to use your own
property as not to injure that of another. And the law, in order
to give effect to this right provides for appeal to the ultimate
power of society, be it king, parliament, state, or people, with
a corollary maxim: equity permits no wrong to be without
a remedy! The effective assertion of equitable rights by an
individual or group of individuals is limited only by the rule
that a party seeking equitable relief must come forward with
“clean hands”—the party must be morally right as well as
legally justified. There is an additional rule of restraint self-
imposed by courts of equity: the relief granted must be com-
mensurate with the injury suffered by the party seeking relief
and tempered by the needs of society.The Origin of Jurisdiction in EquityAristotle asserted that all law is universal and thereby cannot
admit of exceptions, yet laws promulgated to cover a broad
range of human action frequently cause injustice to some
innocent individual because a particular case does not
appear to be covered by the application of the universal law.
Aristotle reasoned that when lawmakers make a law, they
make it for the good of the community, therefore some legal
remedy must be available to the individual treated unjustly
by the particularly application of a general law.
In order to determine whether the individual was indeed
being treated unfairly by the law, one must look to the intent
of the lawmaker and the operation of the law. The remedy for
the individual unjustly treated in a particular case by appli-
cation of a general law was termed by Aristotle Epicheia,
which translates loosely as “There should be an exception.”
It was left up to the judge deciding each particular case to
determine whether a general or universal law was applicable,
and if not, to make the appropriate exception in order to pre-
serve the intention of the lawmaker, which was to ensure the
good of the community.The early Roman lawgivers accepted this concept,
named it equity, and used it as a cornerstone for the develop-
ment of what we now call the Roman Law. The intention of
the Roman lawgivers was that one person should not benefit
by a law while another person was injured by that law unin-
tentionally and unnecessarily.
During the Middle Ages the heir apparent to the Roman
legal system, the Christian church, developed the concept
of equity even further, establishing the principle that “for
every injury there must be some legal remedy,” on the philo-
sophical grounds that if the lawmaker did not provide some
remedy for injury to an innocent individual, the law would
allow certain injustices to go unpunished while others were
punished, and this would be unjust. Since it was then an
accepted principle that lawmakers were just, they could not
have intended an injustice to follow from their laws, there-
fore, they intended to provide the legal remedy and the court
would simply serve as the means to provide that which they
intended to provide all along. Although such circumlocution
might have found favor with medieval philosophers, there
was, nevertheless, a singular practical reason for develop-
ment of he principle. For if there was no procedure for indi-
vidual relief from the unintended application of a general
law, and sufficient individuals were oppressed by the unin-
tended application of that law, then the individuals would
tend to look with disfavor on the lawmakers and, in spite of
the repression inherent in the feudal system, there might be
civil unrest, a condition not conductive to the maintenance of
the tenuous existence of the feudal estates which represented
civilization in western Europe during the Middle Ages.
Equity jurisprudence developed throughout the ecclesi-
astical courts following the decline and fall of the Roman
Empire, but it was to see its most dramatic development in
England following the Norman conquest.
The common law, as distinguished from the customary
law of the popular courts, originated in the establishment by
Henry II of a national court administering a law for the entire
nation, and by the end of the reign of Henry II, we find estab-
lished a Curia Regis, a court of the King, which was a true
court of law in the modern sense, administering a national
law, common to the entire country, and which had largely
displaced the customary laws of the different parts of the
country. This continued during the thirteenth century, so that
by its close, the common law was definitely established as
the law of the nation, displacing the customary law and the
local courts which were limited to local petty maters. The
law of the Curia Regis, which had been the law of the very
great, extended and adapted to the needs of the people so as
to become the common law of a nation.
So long as the common law remained a flexible system
with its field undefined, its power of inclusion unlimited,
and its organs undifferentiated, there was no reason for dis-
tinguishing between the common law and equity. But soon
the common law became so fixed as inflexible and its prac-
titioners so absorbed in nice questions of form and pleading,
there was no longer room for equity. By the early fourteenth
century, the common law, which had supplanted the ancient
customary law, had now, in its turn, become the regularC012_001_r03.indd 603C012_001_r03.indd 603 11/18/2005 10:33:20 AM11/18/2005 10:33:20 AM