VI
While equitable principles and procedures are still
identified as such, their force is now largely historical,
professional, and institutional, rather than moral. Lord
Chancellor Nottingham would note that their force
flows from the official and impersonal conscience of
the judge and not from his personal and moral con-
science. In part this has become possible because legis-
latures and courts generally have learned from equity
the need constantly to reform the law, substantively
and procedurally, and they do so, though the bench
and bar remain on the whole conservative. But judges
no longer speak of the demands of conscience. They
use formulas more acceptable to a secular, democratic
society, and to a learned profession. But like Molière's
character who spoke prose for more than forty years
without knowing it, Anglo-American judges and law-
yers speak equity on many occasions without knowing
it—when they protect victims of fraud; when they
protect married women in their separate property
rights; when they seek relief from distress, mistake or
misfortune; when they seek an injunction or an order
for specific performance of a contract; when they argue
that substance is more important than form; when they
try to evade the technicality of the law in the interest
of the intent of the law; when they seek to compel
a party to do that which he should have done—they
in fact follow precedents laid down by the great
Chancellors, like Thomas More, Lord Ellesmere,
Francis Bacon, Lord Cowper, Lord Harcourt, Lord
Hardwicke, and Lord Eldon. Equity remains the spirit
by which the law is reformed, in one way or another,
to become more responsive to the moral demands of
society.
This spirit manifests itself under other names than
equity, and at times goes much further than any
chancellor could have anticipated. For example,
Jerome Frank's early and influential work, Law and
the Modern Mind (1930) is extremely skeptical of the
effectiveness of laws formulated in general terms, and
places almost exclusive reliance on fact-finding. The
result seems to be a reversal of Aristotle's formulation:
the exception is, in fact, the rule; each case is or should
be decided on its own facts. What Aristotle admitted
only reluctantly and guardedly, Frank and the rule-
skeptics accepted as the very core and crown of the
judicial process: judges are at their best when they
consciously exercise their discretion and their power
to “individualize” justice.
A similar denigration of general rules, a stress on
fact situations, and a belief that exceptions are in fact
the rule can be found in contemporary moral the-
ory—e.g., Paul Lehmann's Ethics in a Christian Context
(1963), Bishop John A. T. Robinson's Honest to God
(1963) and Christian Morals Today (1964), and Joseph
Fletcher's Situation Ethics (1966). Interestingly, this
antinomian, “situational,” “contextual” approach has
been developed mainly by theologians—a development
that recalls the fact that at least in England equity
was first projected by chancellors who were churchmen
to whom the theological and philosophical conception
of conscience was quite familiar and congenial, and
to whom “the law of conscience” was, in theory and
in fact, law. But it is doubtful if the chancellors would
wish to take credit for developments which give central
place to facts rather than to rules, and which seem
to replace the rule of law with the rule of the excep-
tion—the rule of equity.
