Robbins: What’s ‘under law’ and what’s fair are two parts of the broader legal terrain |

Robbins: What’s ‘under law’ and what’s fair are two parts of the broader legal terrain

Not for the first time, but recently, I had a client plead to me, “I only want what’s fair!”

I explained to him that law keeps “fairness” keenly in its sights and, in fact, one of the great “divisions” in the civil law (as distinguished from the criminal law) is the cleft between “law” and “equity.” The “law of law” may be considered “black letter” law. The “law of equity” is a bit squishier and tends in the direction of “doing what is right.”

A bit of extrapolation is in order.

I like to think of the law as a tree which, most times, bears the fruit of justice. Think then, if you will, of the roots of that tree as delving into the fertile soil of English common law from which the law of this nation sprang.

“What’s so common about the law?” might be your next, logical question. Or, maybe, “What the heck is ‘common law’ anyway?” It is this; common law is that law which has evolved from the judgments and decrees of courts, over time. You can think of this as precedent. What has come before informs what now should be considered. What common law is not is the law created by the enactments of the legislature.

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While this may seem silly today, what else the common law is not is ecclesiastical law, which largely governed before the common law arose. Common law is law derived by purely secular, and not by church or church-affiliated courts. In this way, it is truly the law of the people as adopted, over time, by usage, custom, trial and error and adaptation.

Still thriving

The common law is not some theoretic abstract, like reading how the earth was flat until scientists and explorers concluded otherwise. The common law still thrives. 

Think about common-law marriage, as but one example. A “common nuisance” is another. More than a pest, more even than your mother-in-law, a “common nuisance” is a person whose misbehavior is so egregious as to impact the rights enjoyed by others and, as such, is subject to sanction under common law.

Common law remains viable to the point that the encoded law of California, for one, states unequivocally that “the common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State.”

Common law is the collected wisdom of a people and of society.

Back now to our tree. 

Growing from the roots implanted in the soil of immemorial antiquity arises, naturally, the trunk. Think of the trunk as bearing all of the solidity (and solemnity) with which our laws have been invested. Naturally, owing to its age, it is a broad trunk, resilient to attack even by the heartiest, most determined of pine beetles, sometimes known as lawyers. Attack as they will, the law prospers and survives.

From the trunk expand the major branches of the law; the law of law and the law of equity. The “law of law” is that law which is laid down, ordained, or established. It is the sum of the rules established by controlling authority, or precedent, and having binding legal effect.

What’s fair?

The “law of equity” is what’s fair. It is law administered according to what is “equitable” under the circumstances, as contrasted with the strictly formulated rules of common law. Equity is based on a system of rules and principles which originated in England as an alternative to the oft-times harsh rules of the common law.

Equity is based upon what is fair in the particular situation instead of what would otherwise be subject to rigidly applied principles. Historically, one sought relief under this system in courts of equity rather than in courts of law.

In modern legal application, equity is a system of jurisprudence collateral to, and in some respects, independent of the “law,” the objective of which is to render the administration of justice more complete. An example is in order:

Let’s say you and I agree that I’ll do some work for you. I agree to paint your house and you agree to pay me for the work. We agree that you should pay me $1,000 for my efforts. We shake hands and I commence the work. We have a contract recognized under law. When I complete the work, I ask you to honor the contract we have formed and pay me the thousand that we agreed to. You thumb your nose at me instead. 

I determine, after earnest effort to collect the debt, that my only recourse lies with the courts. In court, I may plead “alternatively.” That is to say, I may come before the court and say two things at the same time which may seem contradictory.

First, I can say “we had a contract” and “you” owe me $1,000 pursuant to its terms. This claim is a claim “under law.” The theories and theorems of the contract are well established and this fits with precedent: “Please have this guy pay me the money he owes me under our agreement.”

Alternatively, I can “plead” before the court; “even if we didn’t have a valid contract, I spent my time and effort for this guy and the only fair thing to do is compensate me the fair value of my efforts on his behalf.” Or, put another way, “reimburse me for the value ‘you’ have been unfairly enriched by my labor.” 

This sort of action is based upon a theory of quantum meruit (literally, “as much as is deserved”), a claim subject to the equity jurisdiction of the court. Since, under modern legal theory, equity and law are collateral, both equitable and legal relief may be pleaded simultaneously where the conduct complained of merits both.

To conclude this arboreal explanation, from the major branches of law and equity sprout the smaller, growing, increasingly refined sub-branches of the law, each of which, like all growing things, is subject to, and formed of, the past from which its own life sprang. Law is a growing, living thing, striving always for justice, clarity and ultimately, a slice of daylight.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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