This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
"Bynoneof its brilliant specific maxims has the Roman law acquired so strong a title to immortality as by the manner in which it has defined upon principle its own relation toward equity." These significant words of Kipp18 are at the same time an excellent characterization of the Roman method of legal exposition. For that method is based on the principle of equity, expressed in the sources (like the of Aristotle) by the term "aequitas" ("aequum et bonum, aequum, bona fides"). Equity is the necessary presupposition of correct interpretation. It demands a treatment that is appropriate to the circumstances of each case. The law is equitable when every element in the state of facts that is entitled to be considered is actually so considered.19 The law requires to be interpreted and applied according to the demands of equity. Equity, therefore, is the basal principle of legal interpretation.20 Without "aequitas," i.e. without a knowledge of the requirements growing out of the circumstances of the case to which the law is to be applied, it is impossible to find the true intention of the law ("mens juris, constitutionis ratio, sen-tentia legis," etc.).
17 "Nicomach. Ethics," loc. cit. chap. 14.
18 " Geschichte der Quellen des romischen Rechts."
19 Windscheid, "Lehrbuch der Pandekten," vol. 1, Sec. 28, p. 119.
It follows that it is the part of "aequitas" constantly to supplement and at the same time improve. It is quite true that any rule of law in question has something added to it by such equitable consideration of "all the surrounding circumstances," because its literal or abstractly logical sense is not capable of furnishing a specific norm for all specific cases. Something is read into the law already formulated which cannot be found in the literal text or its sense according to formal logic.21 "Aequitas," therefore, as a principle of interpretation, excludes both a strict adhering to the letter of the statute and what is called "logical exposition." As is said by Celsus: Even one who acts "in fraudem legis" may not offend against the letter of the statute, and yet "salvis verbis legis sententiam ejus circumvenit."22 For this reason a merely grammatical interpretation may be held a malicious perversion of the law ,"Callidum versutumque jus, calumnia, nimis callida interpretatio, summa injuria," etc.23 The same thing is true, however, of logical exposition after the manner of modern scholastic jurisprudence. It is quite possible that such interpretation24 may be incompatible with the demands of equity no less than the driest sort of literalism. For the Roman jurist was not satisfied with the result of logical exposition merely because it was logical or in accordance with the original intention of the legislator.25 "Propter utilitatem strictam rationem insuper habemus," says Papinian smartly,26 meaning thereby: we leave the strict rule aside when it does not help to attain the true object aimed at.
20 Kipp, loc. cit. p. 7, note 13, and in Pauly-Wissowa's "Realen-cyclopaedie." Similarly Celsus, Dig. 50, 7, 90: "in omnibus quidem maxime in jure aequitas spectanda est," and especially Dig. 1, 1, 1: "jus est ars boni et aequi." Regarding H. Kruger's paper ("Die humanitas" etc., Z. Sav. f. Rg. 19, pp. 6-57, in which "aequitas" is confused with concepts like "pietas" and "humanitas," cf. Kipp, "Geschichte," etc., 3. ed., Sec. 2, note 27, pp. 9-10.
21 Cf. C. 1, 14, 1, where Roman "interpretatio" is correctly understood as intermediary between written law and "aequitas"; "inter aequitatem jusque interposita interpretatio"; see also: Cicero, "De republica," v. 2: "aequitatis explanatio, in qua juris erat interpretatio."
22 Dig. 1, 3, 29. - Comp. also Paulus.
Of course, all this does not mean such arbitrary subjectivity as is advocated by the modern movement for free legal decision.27 The juridical peculiarity of Roman "aequitas" lies rather in this, that it shows the possibility of a method which considers itself bound by the statute and yet remains capable of further developing the law.