the imperfect constitution of tribunals or of the ignorance
or sloth of those who sit therein. The latter explanation is no more
satisfying than the fictions, and a new theory has sprung up of late
in Continental Europe which may be understood best by calling it the
equitable theory, since the methods of the English Chancellor had much
to do with suggesting it. To the adherents of this theory the
essential thing is a reasonable and just solution of the individual
controversy. They conceive of the legal precept, whether legislative
or traditional, as a guide to the judge, leading him toward the just
result. But they insist that within wide limits he should be free to
deal with the individual case so as to meet the demands of justice
between the parties and accord with the reason and moral sense of
ordinary men. They insist that application of law is not a purely
mechanical process. They contend that it involves not logic only but
moral judgments as to particular situations and courses of conduct in
view of the special circumstances which are never exactly alike. They
insist that such judgments involve intuitions based upon experience
and are not to be expressed in definitely formulated rules. They
argue that the cause is not to be fitted to the rule but the rule to
the cause.

Much that has been written by advocates of the equitable theory of
application of law is extravagant. As usually happens, in reaction
from theories going too far in one direction this theory has gone too
far in the other. The last century would have eliminated
individualization of application. Now, as in the sixteenth- and
seventeenth-century reaction from the strict law, come those who would
have nothing else; who would turn over the whole field of judicial
justice to administrative methods. If we must choose, if judicial
administration of justice must of necessity be wholly mechanical or
else wholly administrative, it was a sound instinct of lawyers in the
maturity of law that led them to prefer the former. Only a saint, such
as Louis IX under the oak at Vincennes, may be trusted with the wide
powers of a judge restrained only by a desire for just results in each
case to be reached by taking the law for a general guide. And St.
Louis did not have the crowded calendars that confront the modern
judge. But are we required to choose? May we not learn something from
the futility of all efforts to administer justice exclusively by
either method? May w