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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
170 occurrences of ideology
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170 occurrences of ideology
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“Equity” is a term widely used in ethics, law, and
jurisprudence, with connotations that suggest or invoke
ideals of justice, fairness, equality, mercy, judgment
according to law, as well as judgment that bypasses
or transcends strict law in the interest of conscience,
humanity, natural law, or natural justice (as distin-
guished from justice according to law): judgment ac-
cording to the spirit, rather than the letter, of the law.
Equity is also a term used to denominate a special
system of law in England and the United States differ-
entiated from the common law.

In addition, equity is used to refer to an economic
interest—e.g., the equity of the redemption of the
mortgagor; or, more broadly conceived, as one's fair
economic share in an enterprise—for instance, in the
1967 strike of the American automobile workers, it was
stated that the workers “are going to insist that [they
get] the equity that flows from increased productivity
in Ford”; or equity may be used to point to a kind
of property which does not lend itself to precise defini-
tion, and must remain suggestive and detached—e.g.,
equity is the interest in a corporation vested in an
owner of shares of common stock. What these uses of
the term have in common is the notion that equity
is a claim or a right not known to the strict law, yet
one which the law does or ought to recognize.

Equity thus suggests that the law may not always
be perfect, that the enforcement of legal rights and
duties may fall short of justice, that there may be
conflicts between the demands of conventional or legal
justice and natural justice or justice according to con-
science or reason.


Plato. Classical Greek philosophy fully recognized
this duality of claims. Plato, ever sensitive of the
impossibility of ideals fulfilling themselves, saw the
necessity of counterweights to the law and expressed
the essence of the idea of equity (επιέκεια)
in the Statesman (or Politicus):

Stranger: There can be no doubt that legislation is in a
manner the business of a King, and yet the best thing of
all is not that the law should rule, but that a man should
rule, supposing him to have wisdom and royal power....
Because the law cannot comprehend exactly what is noblest
or most just, or at once ordain what is best for all. The
differences of men and actions, and the endless irregular
movements of human things, do not admit of any universal
and simple rule. No art can lay down any rule which will
last forever.... But this the law seeks to accomplish; like
an obstinate and ignorant tyrant, who will not allow any-
thing to be done contrary to his appointment or any ques-
tion to be asked—not even in sudden changes of circum-
stances, when something happens to be better than what
he commanded for someone.... A perfectly simple princi-
ple can never be applied to a state of things which is the
reverse of simple

(Jowett trans. 294 a).

The law, then, is not the perfection of right. The rule
of a wise ruler, possessing royal power, is better than
the rule of law. But since such a god or superman
cannot be found, it is good not to allow the claim to
be free from the guidance of laws—a claim which
implies possession of perfect knowledge and wisdom
with respect to every question or issue. The alternative
to the ideal is to require strict guidance of the laws
and to disallow their correction in particular cases by
judicial or executive action. It cannot be assumed that
the legislator will sit at the judge's side and direct him
to the exact particulars of his duty. This does not mean,
however, that laws are immutable; but until properly,
wisely altered, to violate the laws, “which are based
upon long experience, and the wisdom of counsellors
who have graciously recommended them and per-
suaded the multitude to pass them... would be a far
greater and more ruinous error than any adherence to
written law” (ibid., 300). Once we depart from the
ideal polity, rulers are bound by the principle to do
nothing contrary to their own written laws and national
customs; and the judge is only the guardian of these
laws and has no legislative, innovative, or amending
powers (ibid., 305). The emphasis, however, in this
dialogue is clearly antinomian, for the ideal statesman
“will do many things within his own sphere of action
by his art without regard to the laws, when he is of
opinion that something other than that which he has
written down and enjoined to be observed... would
be better” (ibid., 300).

This dialogue, which belongs to Plato's post-
Republic period (375-368 B.C.; Taylor, p. 19; Field,
p. 209), looks in two directions: back to the strict
antinomianism of the Republic, and ahead to the rule
of law in The Laws, probably Plato's last work. But


the Statesman, as the above discussion shows, clearly
articulates the problem of equity: the conflict between
the need to administer and apply the law in its general
terms, and the demands of justice or conscience in a
particular case, which point to the law as it should be.

In The Laws Plato still maintains that “No law or
ordinance whatever has the right to sovereignty over
true knowledge” (The Laws, 875, Taylor trans.). Since,
however, such insight is nowhere attainable in its per-
fection, “we must choose the second-best [i.e.,] ordi-
nance and law.” After ten years of experiment with
the code of laws, changes shall be possible only if
approved by all the magistrates, the popular assembly,
and the representatives of the oracular shrines. Any
one of these authorities shall have a veto power (ibid.,

Plato, however, left some room for equity. His most
notable and influential provision in this respect is that
the entire code should be preceded by a preamble, and
many specific laws should likewise be introduced by
preambles, which would be expositions of what the
legislator accounts laudable or the reverse (ibid.,
822-23). These preambles should be carefully distin-
guished from the laws proper; their purpose is to edu-
cate and persuade. The proposal was a novel one for
its time, and has implicit in it the possibility of distin-
guishing the spirit of a law from its letter, and in some
way presages what came to be known as the equity
of a statue (Cairns, pp. 154-56). Plato's preambles,
however, differ from later proposals and uses in that
they appeal to ultimate rather than immediate and
particular ends; but in any case preambles are bound
to be used as aids to interpretations, and make possible
interpretations that go beyond the strict letter of the
law to its deeper rationale (Morrow, p. 555). For the
law (nomos) ought always to approximate reason
(nous), its source and justification.

In Plato's scheme for a society subject to the rule
of law, there are other doors left open for equity to
enter, though covertly and interstitially. In judging,
Plato recognizes the difference between the question
of fact and the question of law. The judge does not
make the law—that is for the legislator. But the judge
finds the facts, and then imposes the punishment, with
respect to which, Plato acknowledges, he must have
some discretion. “You and I,” he says, “are about to
fix the penalty or fine to be inflicted on him who
wounds another, or does him a hurt. Now it is, of
course, a proper and obvious comment to make at this
point, to say: 'Wounds? Yes, but wounds whom, and
where and how and when? The different cases are
countless and their circumstances are widely unlike.'
So it is equally impossible to leave everything to the
discretion of the courts and to leave nothing” (The
875). The judge, then, has discretion in finding
the answers to the issues of fact. And if the judges are
properly trained, and are removed from the passions
which sway Attic dicasts who form a jury, we ought
not to impose on them by statute “the numerous and
important” rules which they may discover by insight,
“for attaching to the particular offences the penalty
merited by the wrong committed and hurt inflicted”
(ibid., 876). Since legislators “can consider most cases
and provide for them, but not all [cases],” the code
of laws of “the second-best” society can be nothing
more than “an outline of law with samples of penalties”
to which the judges can look for guidance as to a model
(ibid., 876-77, 934).

Perhaps the calmest and most comfortable way to
admit equity into the legal order is to assume that there
is a body of unwritten law, divine in nature, which
may not be contradicted with impunity by legislator
or judge. Thus, Plato assumes that the “law of our
forefathers” is what “mankind at large” calls the
“unwritten law,” and which is “a true corpus of ances-
tral and primitive tradition which, rightly instituted
and duly followed in practice, will serve as a sure shield
for all the statutes... committed to writing.” These
customs, practices, traditions, these unwritten laws, are
“the mortises of a constitution” (ibid., 793). Whatever
else they accomplish, these unwritten laws make possi-
ble the work of equity when the judge finds it necessary
or advisable to avoid the written law; for law, grop-
ingly or directly, must try to satisfy the demands of
justice, reason, or conscience. nomos must approximate
to nous.

Aristotle. In the development of the idea of equity,
Aristotle was far more influential than Plato. In his
Ethics Aristotle formulated the idea of epiekeia in terms
that made it, for future philosophers and jurists, the
locus classicus of the notion of equity.

Aristotle defines equity as the correction of the law
in cases in which the law is found to be deficient by
reason of its generality. Equity and law are, says
Aristotle, not entirely the same, nor are they entirely
different. Both are right and praiseworthy; they are
not opposed to one another; each is a kind of justice;
but the equitable is superior as a good. There are the
legally just and the equitable just, and the latter is a
correction of the former.

But why should the legally just ever need correction?
The reason, says Aristotle, is that all law is universal,
but about some things it is impossible to make a correct
universal statement; yet the law will make it, knowing,
however, that there is the possibility of error by reason
of the law's generality. No one is to blame for this
state of affairs, neither the legislature nor the law itself.
For the law must speak universally; but life will thrust


forth cases not covered by the universal statement; then
it becomes necessary to correct the omission, “to say
what the legislator himself would have said, and would
have put into his law if he had known.” The equitable
is, therefore, “not better than absolute justice but better
than the error that arises from the absoluteness of the
statement [of the law]. And this is the nature of the
equitable, a correction of law where it is defective
owing to its universality” (Ethics, Book V, Ch. 10).

The problem as formulated by Aristotle is not essen-
tially different from Plato's formulation in the States-
but its articulation in the Ethics has a sharper
juristic edge, and characteristically combines the prac-
tical with the theoretical. While most discussion of
equity disregard Plato's contribution, no scholar fails
to mention Aristotle's discussion of the subject.

In the Rhetoric, Aristotle repeats and somewhat
refines the same conception of equity. It is, he says,
“justice that goes beyond the written law” because
there are omissions from the written law. Some actions
may have escaped the notice of the legislators, and
in some cases it was simply impossible for them to
define all cases, yet they felt obliged to formulate a
general law which would be applicable to most but
not all cases; then Aristotle cites an example, which
has found a place in the literature on equity and legis-
lation: the legislators provide against infliction of a
wound with an iron instrument. A man wearing an iron
ring strikes another man. According to the written law,
he is guilty of wrongdoing, “but in reality he is not;
and this,” says Aristotle, “is a case for Equity.” Aristotle
then adds that actions which should be treated with
leniency are cases for equity, and among such actions
he includes those that are the consequence of misfor-
tune, error, and human weakness. In such cases one
should look to the intention of the legislator and not
to the letter of the law; one should look, he says (Freese
trans. I. xii. 13-19):

not to the action itself, but to the moral purpose; not to
the part, but to the whole; not to what a man is now, but
to what he has been, always or generally;... to prefer
arbitration to the law court, for the arbitrator keeps equity
in view, whereas the dicast looks only to the law, and the
reason why arbitrators were appointed was that equity
might prevail.

In the same treatise, when examining the application
of these notions to forensic oratory, Aristotle advises
that when the written law is against us, we should have
recourse to “the general law and equity as more in
accordance with justice”; that we should contend that
while written laws often vary, equity is constant; for,
like the unwritten law which Antigone used to justify
her having buried Polynices contrary to the law of
Creon, equity is based on nature; it is a part of genuine,
not spurious, justice (I. xv. 1-9).

There is no doubt that Aristotle's observations on
the forensic use of equity reflected a common practice;
for Greek orators appealed to equity, especially when
they faced archaic or rigid statutes, and particularly
as these laws applied to wills and contracts. Since there
were in ancient Athens 6,000 dicasts, who could be
chosen by lot to sit as judges, the heliastic courts (which
used the dicasts) in fact were a popular institution
representing the sovereign people, who possessed the
prerogative of the sovereign, and could therefore dis-
pense justice without regard to technicalities. Thus
equity was no abstract conception but an essential part
of Greek justice and its practical administration
(Vinogradoff, II, 63-69).


Cicero quoted as a saying familiar in his time, Sum-
mum jus summa injuria.
Through oversubtle and even
fraudulent construction of law, he said, much wrong
was committed (De officiis I. X. 33). Indeed, in De
Cicero goes so far as to say that it is only “the
crowd's definition of law” which identifies law with
written decrees in which the people issue commands
and prohibitions as they please (I. vi. 19). Law for
Cicero is the voice of reason and of nature; action
according to virtue is action according to the law; an
enactment which commands an injustice is not truly
a law. The most foolish notion of all, he says, is the
belief that everything in the customs or laws of nations
is just. “For Justice is one; it binds all human society,
and is based on one Law, which is right reason applied
to command and prohibition. Whoever knows not this
Law, whether it has been recorded in writing anywhere
or not, is without Justice” (De legibus I. xv. 42).

Cicero obviously was influenced by the teachings of
Plato and the Stoics, in which the dichotomy between
written and unwritten law stands out prominently.
Institutionally, however, Roman law seems to have had
a development which did not lean on Greek prece-
dents. The praetor, Roman chief magistrate, readily
developed aequitas as the jus honorarium. Since his
power was supreme, the praetor found no obstacle in
his way. Without annulling the jus civile the praetor
introduced principles which allowed equitable
defences or remedies. Praetorian law took a specially
productive turn in the form of equity when, in the
third century B.C., a praetor peregrinus was named to
exercise jurisdiction in cases involving foreigners, who
were attracted by Rome's commercial activity. The
praetor peregrinus introduced principles and rules more
liberal than those found in the jus civile. The equitable
principles which the praetor peregrinus substituted for


the rigor juris influenced the praetor urbanus to make
available to Roman citizens principles which could not
be the exclusive privilege of foreigners. The principles
were those which, the praetors believed, were the bases
on which the law could be built—and in this respect
their action was influenced by Greek philosophical
ideas. For the leading jurisconsults were closely associ-
ated with Greek philosophy, especially with Stoicism,
and it was they who came to see in the jus gentium,
the law common to nations, an expression of the Stoic
law of nature; and it was precisely through equity that
the jus gentium and the law of nature touched and
blended. It was, Sir Henry Maine observed, the level-
tendency of the jus gentium that became the
characteristic of the praetorian system of equity
(Maine, Ch. III). Principles such as aequitas, aequum
et bonum,
and bona fides became prominent in Roman
jurisprudence (Allen, pp. 377, 381). There were, of
course, those who objected to this development; e.g.,
Quintilian, in the first century A.D., argued that if the
court “is always to be spending its time turning statutes
inside out to discover what is just and what is equitable
... well, then there might as well be no statutes at
all.” In A.D. 125, Hadrian, to end the powers of the
praetor, asked Julian to edit the praetorian edicts and
put them in final form, and when this was accom-
plished, further alterations were prohibited.


Yosher. In the Hebrew Scriptures there is no one
term that is uniformly translated as equity; however,
the Hebrew term (yosher) and its derivatives, perhaps
more frequently than others, is given the meaning of
equity or equitable. When Isaiah describes the ideal
ruler, he says that he shall judge the poor with right-
eousness, “and decide with equity [with yosher] for the
meek of the lands” (11:4). So, too, the psalmist (98:9)
proclaims that the Lord “is come to judge the earth;
He will judge the world with righteousness, And the
peoples with equity [with yosher].” The term is, how-
ever, often used synonymously with words connoting
righteousness or justice or virtue.

When judged by today's moral standards, some of
the biblical laws seem unduly harsh and even unjust;
but the Jewish tradition has consistently held to the
belief that in addition to the written law, there is an
oral tradition, and that the latter is primary and the
written text secondary. The lex talionis means fair or
monetary compensation in place of wild revenge; the
value of one eye, not two, for an eye. It enjoins the
principle of an equitable relation between the crime
and the punishment, and the principle that all men
are equal before the law and are to be judged by the
same standard. In brief, the interpretation of the text
rejects literalism; the oral tradition admits judgment
according to the voice of justice, humanity, right-
eousness, fairness, or equity. The basic commandment
is not to observe the letter of the law in all its strict-
ness but, rather, “Justice, justice shalt thou follow”
(Deuteronomy 16:20); and justice is often used in ways
which suggest its link with loving-kindness or grace.

In his Mishneh Torah, the classic code of Jewish law,
Maimonides (twelfth century) states that at the outset
of a trial the judges should inquire whether the litigants
desire adjudication according to law or settlement by
arbitration. A court, says Maimonides (pp. 66-67),

... that always resorts to arbitration is praiseworthy. Con-
cerning such a court, it is said: Execute the justice of...
peace in your gates
(Zechariah 8:16). What is the kind of
justice which carries peace with it? Undoubtedly, it is
arbitration. So, too, with reference to David it is said: And
David executed justice and charity unto all his people
Samuel 8:15). What is the kind of justice which carries
charity with it? Undoubtedly, it is arbitration, i.e., compro-

While strict constructionists—like the Sadducees and
the school of Shammai—could support their con-
servative, literalist approach by citing the text (Deu-
teronomy 4:2), “You shall not add to the word which
I command you, nor take from it,” the liberal Pharisees
and the school of Hillel could cite as support for their
creative, and even innovating, approach the text
(Deuteronomy 17:8-13) which commands the sub-
mission of difficult cases to whoever is judge at the
time, and to do according to what he decides: “You
shall not turn aside from the verdict which they [the
judges] declare to you, either to the right hand or to
the left.” In the spirit of the latter view, the Jewish
authorities at times proceeded in the face of expressly
contrary laws. Maimonides put the rationale as follows
(p. 141): “Even as a physician will amputate the hand
or the foot of a patient in order to save his life, so
the court may advocate, when an emergency arises,
the temporary disregard of some of the command-
ments, that the commandments as a whole may be

Thus, despite the fact that the written law provides
for capital punishment for numerous crimes, every
effort was made to circumvent the letter of the law;
and the Mishnah—basic compilation of the oral law,
prepared in the second century A.D. from an earlier
compilation by Akiba—reports that a court which
imposed the death penalty once in seven years was
called a court of destroyers, that Rabbi Elizer ben
Azariah said that it was a court of destroyers if it put
one man to death even in seventy years, and that Rabbi
Tarphon and Rabbi Akiba said that if they were mem-


bers of the Sanhedrin, never would a person be put
to death (Mishnah, 403).

Since the Hebrew Scriptures and classical, Pharisaic
Judaism fail to make a distinction between religion,
law, custom, and morals, and since the Bible places
such stress on equity that the word for it became a
name for Israel—Jeshurun, Yosherun (Deuteronomy
32:15; 33:5, 26)—equity jurisdiction could not become
separately institutionalized but had to be woven into
the very fabric of rabbinic jurisprudence.


While the rationale, the maxims, and the precedents
for equitable adjudication are all part of our ancient
Hebraic-Greek-Roman heritage, which flowed directly
into the canon law, and into the secular law where
the Church had influence, it was in the Anglo-Norman
and Anglo-American legal systems that equity won its
clearest formulation.

Before the Norman conquest, the courts of the
Angles, the Saxons, and the other peoples of England
administered the tribal, customary laws peculiar to
each tribe or social group. With the Normans came
the feudal social order, and beginning in 1178 the
successors of William organized royal courts to admin-
ister the King's justice according to the law common
to all England—perhaps something comparable to the
Roman conception of jus gentium, “the sum of the
common ingredients in the customs of the old Italian
tribes” (Maine, p. 29)—what came to be known as “the
common law.” These courts exercised considerable
discretion out of a sense of equity or fairness, and
adopted procedures to meet new conditions. But in the
middle of the fourteenth century the expansion of the
common law seems to have stopped, and the courts
said that if the law is to be altered in any respect,
Parliament must take the initiative.

Parliament did not respond to the challenge; yet
considerations of equity could not be indefinitely re-
pressed or repulsed. The stultification of law in the
royal courts created the royal remedy: the Chancellor,
the surrogate for the King in the administration of the
government, established in his office—the Chancery—
an agency to hear grievances which the royal courts
administering common law would not hear. The Chan-
cellor said that, when he took jurisdiction of a cause,
it was a matter of grace or conscience, and that he
would render justice, not according to the technicalities
of the common law but according to the dictates of
equity. Since the Chancellor was usually a cleric—the
last clerical Chancellor was Bishop John Williams
(1621-25)—he was naturally much more familiar with
the equitable principles of the canon law of the Church
and with the praetorian edicts in Roman law than with
the law and legal forms administered by the King's
Bench. The equitable basis of the Chancellor's juris-
diction was marked by the basic guideline that equity
could be sought only in cases where the common law
remedy was inadequate.

The common law courts exercised their jurisdiction
through “writs” which directed the sheriff to seize the
defendant's property and use it to satisfy a judgment
against him, or through other writs which affected
rights in rem; but Chancery acted only in personam,
on the person directly. This was consistent with the
theory that equity makes its appeal to the conscience
of the party. A disobedient party was held by the
Chancellor to be in contempt of the King, and thus
in a way a rebel. Since the Chancellor could order
the parties before him to do what equity demanded,
he could keep a matter in controversy indefinitely
before him, and decree various steps or actions affect-
ing it. Thus he could order specific performance of a
contract, while a court of law could only award dam-
ages for a breach. Unlike the King's courts of law,
Chancery could enforce trusts by compelling the
trustee to act in accordance with the demands of fair-
ness or conscience. In due course, certain maxims came
to be associated with equitable jurisdiction, among
them: “He who seeks equity must do equity.” “He who
comes into equity must come with clean hands.” “Eq-
uity suffers not a right to be without a remedy.”

There was, naturally, criticism of a court that
candidly admitted that it sought guidance in con-
science, as, in the famous statement by John Selden
in the seventeenth century (Selden's Table Talk, 1689):

Equity is a roguish thing. For Law we have a measure, know
what to trust to. Equity is according to the conscience of
him that is Chancellor, and as that is larger or narrower,
so is Equity. 'Tis all one as if they should make the standard
for the measure we call a 'foot' a Chancellor's foot; what
an uncertain measure that would be! One Chancellor has
a long foot, another a short foot, a third an indifferent foot.
'Tis the same thing in the Chancellor's conscience.

In the reign of James I the contest between the
common law courts and Chancery broke out in the
open, and the King himself, in 1616, resolved it by
throwing his weight on the side of the latter. Equity,
however, now began to restrain itself and to impose
an order on its work. Francis Bacon, as Chancellor
(1617-21), contributed to this effort. Before long equity
itself became a system of precedents and itself began
to suffer from rigor juris. The conscience of the
Chancellor was, it was said in 1672 by Lord Chancellor
Nottingham, not his natural or personal, but his civil
and official, conscience.

After the Puritan Revolution, when the struggle


between royal power and Parliament was resolved in
favor of the latter, the Chancellor, as the voice of the
King's conscience, naturally declined; the common law
courts, which had sided with Parliament, gained in
prestige and authority. They now benefited from Sir
Edward Coke's earlier struggle against James I, in
which Coke was the champion of the supremacy of
the common law against prerogative.

Beginning in the eighteenth century the common
law courts proceeded to introduce doctrines and pro-
cedures which for centuries had been limited to
Chancery. These reforms were effected sometimes by
statute and sometimes by court decision. In time it
became apparent that there was little if any justifica-
tion for the two systems of courts, and a movement
got under way to combine the two into a single court
system. This was accomplished by the Judicature Acts
of 1873 and 1875, which, among other things, fused
law and equity.


The American colonists lost no love on the King's
courts or the King's conscience. Remembering the
oppression suffered at the hands of some judges follow-
ing the Restoration, and that equity was somehow
associated with royal prerogative, they looked with
more favor on the law of the Hebrew Scriptures than
on the common law and equity of England. Thus, when
the Constitution of the United States was framed, it
provided for a single system of federal courts, with
power as to both law and equity; and some states also
adopted this pattern. However, this did not mean the
fusion of the two systems of law. It only meant that
at times the court sat as a court of law and at times
as a court of equity. But this device, adopted in part
because it was more economical than two separate
courts, could not but contribute in time toward a
fusion. Some states set up entirely separate courts of
equity and of law. New York State in 1848 broke new
ground by adopting the code drafted by David Dudley
Field, which effectively merged the two systems. In
1938 the federal courts adopted the essentials of the
Field Code, and in 1948 New Jersey, by then the only
state with a Court of Chancery, also effected a merger
of the separate courts. The right to equitable relief,
however, is still based on the inadequacy of “legal”
relief; equity's principles, maxims, and precedents re-
main relevant.


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

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.


Carleton Kemp Allen, Law in the Making, 6th ed. (Oxford,
1958). Aristotle, Nicomachean Ethics, trans. H. Rackham,
Loeb Classical Library, revised ed. (London and Cambridge,
Mass., 1934); idem, TheArtof Rhetoric, trans. John Henry
Freese, Loeb Classical Library (London and Cambridge,
Mass., 1926). William W. Buckland, Equity in Roman Law
(London, 1911). Huntington Cairns, Legal Philosophy from
Plato to Hegel
(Baltimore, 1949). Cicero, De republica—De
trans. Clinton W. Keyes, Loeb Classical Library
(London and Cambridge, Mass., 1938). Boaz Cohen, Law
and Tradition in Judaism
(New York, 1959); idem, “Letter
and Spirit in Jewish and Roman Law,” Mordecai M. Kaplan
Jubilee Volume
(New York, 1953). David Daube, Studies in
Biblical Law
(Cambridge, 1947). G. C. Field, The Philosophy
of Plato
(Oxford and New York, 1949). William S. Holds-
worth, A History of English Law, 16 vols. (London, 1903-66),
esp. 3rd ed. (1945), Vol. V. James Willard Hurst, Growth
of American Law: The Law Makers
(Boston, 1950). John W.
Jones, Law and Legal Theory of the Greeks (Oxford, 1956).
Maimonides, Code, Book 14, The Book of Judges, trans.
Abraham M. Hershman (New Haven, 1949). M. R. Konvitz,
“Law and Morals in the Hebrew Scriptures, Plato, and
Aristotle,” in Social Responsibility in an Age of Revolution,
ed. L. Finkelstein (New York, 1971). Henry Maine, Ancient
(London, 1861), Ch. III. Frederic W. Maitland, Sketch
of English Legal History
(New York, 1915); idem, Equity,
also Forms of Action at Common Law,
eds. A. H. Chaytor
and W. J. Wittaker (Cambridge, 1909). Mishnah, trans.
Herbert Danby, Makkoth I. 10 (Oxford, 1933). Glenn R.
Morrow, Plato's Cretan City (Princeton, 1960). Plato, Dia-
trans. Benjamin Jowett (Oxford, 1892); idem, The
trans. A. E. Taylor (London, 1934). Theodore F. T.
Plucknett, Concise History of the Common Law, 5th ed.
(London, 1956). Frederick Pollock, Essays in the Law
(London, 1922), Ch. VII. Max Radin, Handbook of Anglo-
American Legal History
(St. Paul, 1936). Select Essays in
Anglo-American Legal History,
by various authors (Boston,
1908), Vol. II, Part IV. A. E. Taylor, Plato: the Man and
His Work,
6th ed. (New York, 1952). Paul Vinogradoff,
Outlines of Historical Jurisprudence, 2 vols. (London,


[See also Equality; Justice; Law, Common, Natural; Legal