This manner of putting the question takes us back unavoidably to the concept of or "aequitas." "The equitable is an improvement of the law where that commits a mistake on account of its general form of expression"; for "all things cannot be regulated by law because, regarding some things, it is impossible to enact laws."38
In other words: the problem of how to apply the law cannot be solved scientifically except by considering the problem of unprovided cases.
One may well find the beginning of a scientific appreciation of this matter in the celebrated work of Geny, "Methode d'interpretation et des sources en droit prive positif."39 The merit of this work consists in this, that the author for the first time strongly emphasized and systematically utilized the scientific possibility of unprovided cases.
He failed, however, to expound in detail the leading thoughts of his theory or to emphasize them with conscious appreciation of their consequences. Drawing too sharp a dividing line between "passive interpretation" and "supplying of omissions," he tries to explain the former function exclusively in the narrow manner of the accepted doctrine. For the second function, however, he allows an exceedingly "free" "libre recherche scien-tifique."40 That means, he forgets that the demarcation drawn by him cannot be carried out in practice. After all, a rule is never plain and circumstantial but when it fits in every respect the case to be decided; in all other instances it is necessarily doubtful and full of omissions. The error of Geny consists in this, that in connection with unprovided cases he thinks only of technical errors in the draftsmanship of a statute, obvious mistakes of the legislator, or important changes in economic and social conditions. He fails to consider at the same time the circumstance that the specific facts in individual cases produce "gaps" in every legislative provision. In this respect he has not succeeded in appreciating sufficiently the true relation of the statutes to the whole body of the law. He has not understood, or at least not scientifically set forth, the Graeco-Roman point of view described above, according to which it would be an impossible task for the legislator to express every general principle of law with such clearness that out of this rule the application to all individual cases might be evolved by a simple chain of deductions.41 There has always been need of emphasizing more strongly the point already made by Aristotle, that it is not the purpose of a statute to establish a specific rule for every relation of life that may occur.42
37 Aristotle; see notes 16 and 17 supra.
38 Kipp, note in Windscheid's "Pandekten," vol. 1 Sec. 28, Sec. 121.
39 Rumpf (loc. cit. note 3), p. 21, correctly suggests that the success of this eminent and broadly conceived work was at the same time, in no small part, a success of German jurisprudence. Not to mention older standard works, comp. especially Ehrlich, "Liicken im Recht," in: Burian's Juristische Blatter, vol. 17, 417 seq.
40 Geny, loc. cit. 457 seq., 580 seq. For a critical appreciation, see Perceron, in: Annales de droit commercial et industriel francais, vol. 14, 145-160; Eycken, "Methode positive," pp. 368-386; Lambert, (loc. cit. note 8) pp. 34 seq., and authorities cited p. 29, note 1; see also Rumpf, loc. cit. pp. 25-28.
41 Comp. Danz, "Auslegung der Rechtsgeschafte," 2d ed., 1906, p. 79.
42 Valuable suggestions on this point especially in: Kohler, in Grunhut's Zeitschrift, vol. 13 seq., Jhering's Jahrbucher, vol. 25, pp. 270 seq., and "Lehrbuch des burgerlichen Rechts," vol. 1, pp. 122