s<> ^KMmo-jo 5 ^ ^OF-CAl UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY \V\E-UNIVERS//j ; and the notable exception, that of the French Parlement, is one that "proves the rule," for the struggle here between the King and Parlement was centered on the legislative power, and the judicial power of Parlement was only an appurtenant incident, not brought into contrast and conflict. But when Montesquieu's famous triple separation of powers legislative, judiciary, and executive became practically accepted, why did not this separation of judicial and legislative functions lead to an issue, and to a general inquiry into its necessity? Because (we must infer) the spirit of the French Revolution had so emphatically settled the location of legislative power that the exclusive dominance of the parliamentary body as the declarer of law was placed beyond question, even for the judiciary, and was bound to remain so for a long time to come. And the American Constitution enshrined this dominance. But when the time should come that the personal aspect of the class-struggle had ceased even to be remembered, when the judicial personnel had become practically democratized, by popular judicial elections or otherwise, the question of theory was ripe for fermen- tation. When any country to-day can look at its judicial body and at its legislative body, and see a hundred judges drawn from a professional legal class, and a hun- dred legislators drawn from the same professional legal class, distinguished from each other in no substantial respect of birth, education, class interest, or tradition, and employing more or less identical materials of thought EDITORIAL PREFACE xxiii in their technical labors, when the judiciary com- mittees of the so-called legislatures are found carefully collating the bearings of judicial decisions and the so- called judges are seen expounding considerations of public policy, the question is then bound to present itself, in any community, sooner or later, Why are these men occupying separate posts? Why are there separate posts? Why do legislators legislate and judges judge? What is the inherent distinction between their functions? No doubt there is a distinction. But just what is it? And what is its relation to the nature of law? And what separate processes and materials of thought does it impose upon each functionary? For, until we have satisfied ourselves on these points, we cannot expect to proceed practically to remedy intelligently any observed defects of operation in either. Here we come, of course, to fundamentals, the nature and processes of law, justice, judgment, legis- lation. Such is the connection which arises between the problenvof the day and the philosophy of law. The problem of legal method has become a specific one in jurisprudence substantially within about the last twenty years. Certain special inquiries which logically belong in this field (like that concerning codification) are very much older, and it is interesting to note that it was principally the codification of German private law in 1896 which served to attract writers in all depart- ments of legal science to the problems of legal method. The literature has grown already to large proportions. The reserves of mental force which (it may be assumed) are normally in existence in any given country or countries in constant, if not calculable quantities, and which find expression in literary and scientific products, have, within this period, been diverted away from the xxiv EDITORIAL PREFACE older conventional lines which brought to light intel- lectual outpourings on "Naturrecht," "Juristische Ency- klopadie," and "Allgemeine Rechtslehre," and towards the problems of legal method. It would seem at any rate, to speak of the last fifteen years especially, that there has been a very considerable falling-off in books of the first type, and a large production of books of the second. The French Civil Code of 1804 did not stimulate a similar intellectual movement; nor did the Austrian Civil Code of 1811 have that result. The explanation, however, is simple enough. The economic milieu then was largely non-industrial, society internally was more stable, and although the same problems then existed in form, at least, they did not rise to the level of juristic conscious- ness because of a difference of content. Furthermore, the strain of economic readjustment was absorbed by the legal machine without great effort, and especially so far as concerns the part of the French Court of Cassation. We have suggested that the problems themselves, in form, are not new. That is true. We have only to look back to the age of Labeo and Capito to find in principle the modern problems of legal method. The immediate genealogy of the present luxuriance of writing in this new department of legal science, however, may be traced to von Jhering's "Scherz und Ernst in der Jurisprudenz" (1885) followed a little later by Kohler, and then followed by Geny and Ehrlich (1899, 1903), with whom the movement takes on a definite form. And the present volume aims to present, in an order suited to develop the various stages of the discussion, the most useful recent utterances of eminent jurists on the principal aspects of the problem. Dividing the general subject under two heads the Judicial Function and the Legislative Function the chapters under the first head must, nevertheless, EDITORIAL PREFACE xxv inevitably concern themselves, at various points, with the relation of judicial decision to legislation. The chapters under the second head, assuming this dual aspect to have received clarification as to its theoretical foundation, proceed to deal solely with the problems peculiar to the legislative function. The chapters of the first division the Judicial Function begin with the now celebrated utterances of Geny and Ehrlich on "freedom of judicial decision," the two whose expositions awakened the entire Conti- nent to the profound possibilities of the subject. These are followed by chapters in which Gmelin, Kiss, Berolz- heimer, Kohler, Pound, Gerland, and Lambert have developed various principal aspects of the controversy, notably the contrast between the English and the Con- tinental judge, the subordination of the judge to legis- lative law, the scope of materials for judicial thought, the extent of judicial power of "interpretation," the doctrine of "gaps in the law," and the inherent logic governing judicial decision. The culmination is reached in Wurzel's chapter on "Methods of Juridical Thinking." He who has mastered this chapter has been born anew into a realm of clear thinking and perpetual disillusionment. The chapters of the second division introduce us broadly but concisely to the fundamentals of the legislative problem. There is, however, as yet, little literature of a thorough-going critical character in this field. The future must see more, and America, not code-ridden as the Continent is, but fertile in a spawn- ing mass of incoherent legislation, is the natural and needful place for its development. Without attempting even to outline the many varied aspects of these chapters, we may in this preface notice some of the principal features that interest us in each of the divisions. I. THE JUDICIAL FUNCTION The knowing what is just and what unjust, men think no great instance of wisdom, because it is not hard to understand those things of which the laws speak. They forget that these are not just acts except accidentally. To be just, they must be done and distributed in a certain manner. And this is a more difficult task than knowing what things are wholesome. For in this branch of knowledge it is an easy matter to know honey, wine, hellebore, cautery, or the use of the knife; but the knowing how one should administer these with a view to health, and to whom, and at what time, amounts in fact to being a physician. Aristotle, Nicomachean Ethics, v, 9, 1137a. An interesting circumstance, which explains in part the difficulty of the problem in its practical aspect, is the contrast between the personal element in history and the jural element in theory. The theoretical purity of the problem is and always has been disturbed by the factional status quo of politics. When we find the Roman praetor deciding particular causes and also issuing general edicts, we realize that the course of Roman politics, in the struggle for power between consuls, tribunes, comitial assemblies, and senate, had resulted for the time in a pragmatic adjustment which left in the praetor's hands a portion of both functions, legislative and judicial. So, too, in France, the devious path by which the royal power became paramount in all fields under Louis XIV left the provincial Parlements in the possession of a limited portion of both functions; the recipe for the mixture being very different from that of the praetors. And again, in our own history, even after Montesquieu's triple distinction had come into common vogue theoretically, the traditions of the colonial legislatures and the alignments of local politics THE JUDICIAL FUNCTION xxvii sometimes found the early state legislatures indisposed to observe the distinction; as, for instance, in Rhode Island, where "originally the General Assembly seems to have considered itself a court as well as a legislature," 1 and this attitude was not abandoned until after thedecis- sion of Taylor v. Place, in 1856 2 ; for in this community the actual personnel of the Legislature, moved by local partisan strife, was evidently ready to exercise the judicial function. And, still more notably, the success of Marshall in vesting the federal judi- ciary with the revision of legislative statutes on constitutional grounds, and thus in preserving a legis- lative veto for the judiciary, was an expression of the deeper struggle between two political parties holding antagonistic convictions in the broader field of general politics. 3 Thus, we see, the actual allotment of the detailed portions of the legislative and judicial functions varies at a given time and place, according to the then state of equilibrium of political interests; which in turn involves personnel, traditions, and other independent considerations. In short, the actual solution of the problem is and always has been complicated by his- torical and personal issues. In pure theory it is never presented. None the less, it is possible and necessary to treat it as a question of theory, and to inquire into its general elements, common to all times and places. There seem to be at least four distinct and large questions involved. 1 Quoted by Chief Justice Durfee from Justice Stiness in his essay on Samuel Ames (Lewis' "Great American Lawyers," v, 301). *4 R. I. 324. 3 Marshall was "by far the most popular Federalist in Virginia, per- haps in the United States" (W. D. Lewis' "Great American Lawyers," ii, 337). xxviii EDITORIAL PREFACE 1. Is it inherently necessary that the judge should be subordinate to the statute? Let us call this, for short, the question of Judiciary Subordination. 2. Even if he is, where does the control of the statute stop, leaving him free beyond that point? Let us call this the question of Judiciary Interpretation. 3. So far as he is free, how far is he controlled by his own prior declarations? Let us call this the ques- tion of Judiciary Statification. 4. And, so far as he is not so controlled, what does furnish him any other guide or control, superior to his own momentary and unformulated sense of justice? This we may call the question of Judiciary Rectification. Let us look a moment at the first question: 1. Is it inherently necessary that the judge should be subordinate to the statute? the question of Judiciary Subordination. To get the proper point of view, we must here make some assumption as to the use of terms, i.e., the dis- tinction of ideas implied in "judicial" and "legislative". There certainly are two distinct processes. One is the process of (1) formulating a rule in more or less general terms, (2) because of certain policies deliberately deemed to be controlling; i.e. (1) formula- tion (2) to effect a felt purpose. This we may assume to be the essence of what we usually call "legislation." The other process is that of deciding, by an agent of state power, a controversy existing between two individuals (or the State and an individual), by rational (not merely personal) considerations, purporting to rest on justice and law (i.e. the community's general sense of order). Now these two processes might conceivably be per- formed by the same person or group, and have often XXIX been so performed, in variant shares or allotments, and the first inquiry that arises is whether they ought to be so merged, in any degree. But, for the purpose of theory, we may now assume that this question has been settled ; and that it has been settled on historic a,nd political grounds, by allotting, provisionally and primarily, the whole of the one process to one person or group of officials, and the whole of the other to another person or group. And we may ignore for the moment the logical difficulty to be mentioned under the next head (due to the inherent abstractness of legislation). We shall then come to the question: Does it work? That is to say: // the legislative process were officially so organized that it worked perfectly, no occasion would arise for asking whether the judiciary could be freed from subordination to it. If the legislative body were to sit continuously, were to deliberate ail-wisely, and were to formulate correctly and consistently, the judici- ary process could be left to operate in simple subordina- tion, by merely applying the rules to concrete cases. For whenever an exception appeared to be needed, or a change to be desirable, there would be instant ref- erence to the legislative body, and its all-wisdom would supply the needed rule or exception, properly framed. . But the legislative process never does work perfectly. The legislative officials sit intermittently, deliberate hastily and unwisely, and formulate inconsistently. Moreover, they do not in the traditional Anglo-American State (nor in many others of history) legislate com- prehensively on all topics, but only on some of the topics. Under such circumstances, then, should the legislative formulations be accorded a supreme domina- tion? To accord such supremacy if the process even purported to work perfectly would be conceivable. xxx EDITORIAL PREFACE But to accord it when the process is so imperfectly organized seems absurd, one of the absurdest things that history ever allowed to occur. To vest with absolute steel-bound rigidity a system so irregular and limping in its machinery is as curious a notion as to send a steamship to sea with only half of its machinery put together. From this point of view, therefore, it is entirely proper to raise the question whether the officials vested with the judicial process must not inherently be given some independence of the legislative declaration, i.e. the statute. And Anglo-American history illustrates copiously how the judiciary have in fact occupied them- selves at all times with declarations of law independent of statute, i.e. with genuine legislation. That they have done so is now seen to be nothing but an inevitable consequence of the imperfect organization of the legis- lative process in separate hands. There is here, to be sure, a special question whether the judiciary should not be purely subordinate to the legislative declaration at least in those parts of the field of law that have been expressly covered by the latter. But even here, in view of the imperfect legis- lative machinery, the question is a fair one to raise whether the intellectual weight of the legislative sanc- tion deserves such rigid supremacy. Here, as else- where, what has given it that supremacy, historically, has been its political (not its intellectual) weight; i.e. when the dominant public demand has expressed itself through the legislature, all officials must yield to it, not because it is intrinsically meritorious, but because it represents the demands of actual power. But such express demands of actual dominant senti- ment are not usual. The mass of legislation in modern times represents merely the views of thirty or forty THE JUDICIAL FUNCTION xxxi members of a judiciary committee of the legislature, on multifold details totally unknown to public senti- ment. Should such legislative declarations have sac- rosanct dominance over the judiciary? Incidentally, at this point, as well as later, arises the question, Can we trust the judiciary with such a freedom? Must we not bind them by statute? Should we be safe otherwise, in view of the judicial personnel as it is composed in our time and place? No doubt this is a question whose answer may vary at different epochs and in different countries. Evidently the Roman praetor, for example, was trusted more than our modern judges are trusted. But enough here at this point, where the question is merely between judiciary and legislature^ to insist that this question for us is not merely whether we could trust the judges, but whether we would rather trust the judges than the legislators. If it is to be a mere question how a dominant declaration of this or that rule of law will be most safely formulated, will the ordinary judiciary committee of a legislature be more safely trusted than the ordinary bench of supreme judges? If we are to attribute a sacrosanct domination to some official declaration of law, we must frankly face the facts of present practice, and not pro- ceed upon some imaginary and theoretical state of facts. As laws are to-day actually made, what is the special guaranty of supreme wisdom furnished by the usual operations of a judiciary committee of the legislature? Such are some of the considerations that arise under our first general question, that of Judiciary Subordina- tion. 2. Even if the judge is subordinate, where does the control of the statute stop, leaving him free beyond that point? the question of Judiciary Interpretation. xxxii EDITORIAL PREFACE This question has so many angles of approach that one must be content to note only a few of them. (1) In the first place, where ought the statute to stop? Should it descend into details, or should it remain in abstractions as much as possible? Should it be satisfied to proclaim "Thou shalt not steal!"; or may it well attempt to describe and prohibit multifarious varieties of stealing? This, of course, is not strictly involved in the present question, but concerns rather the Legislative Function (post, p. xliii). Suffice it here to lament that our legis- lative traditions have never evolved a method, such as the French have evolved, of debating great ques- tions " en principe," as they say. Our own more practical tradition, that of debating the fundamental principles only when presented as an issue of textual detail, has rendered a great service by dispelling obscur- ity of views and by forcing practical issues. But the over-emphasis of it has lost a valuable feature of wise legislation. For example, in the debates of the National Conference on Workmen's Compensation Laws, in 1910, much was gained, in time and clarity, by framing one of the issues thus: "Shall the law be optional or compulsory for employers?" By this means, the textual details were removed from needless dissension until the main issue had been settled. (2) In the next place, where does the control of the statute stop? Is the legislative intent the sole criterion? Here a broad field of variant views is opened. Literally hundreds of views can be found. 4 Let us here note merely a few of the conventional assumptions that are questionable. (a) One of the most interesting conventional assump- tions is that there is an actual legislative will at all. See an interesting article by Professor M. R. Cohen, "The Process of Judicial Legislation" (American Law Review, xlviii, 161, 1914). THE JUDICIAL FUNCTION xxxiii If there were, it would have to be somewhere existent in some persons. Now it d6es not exist in the voters at large; for only an infinitesimal number of them are beforehand acquainted with the terms of the bill; and they cannot will what they do not know; the most that they ever will, as a mass, is the general principle, e.g. to lower the tariff, not to raise it; or to abolish imprisonment for debt, not to preserve it. Nor is that will to be found in the legislators as a body ; for in nine cases out of ten, they do not know or care about the terms of the bill for which they vote. In the last analysis, therefore, the only actual legislative will is the will of a few individuals belonging to the drafting committee. The candid and realistic acknowledgment of this fact has surely some bearing on the extent to which the judiciary should be held bound to ascertain and to respect the "legislative will." (6) Another conventional assumption is that this "legislative will" is a simple undifferentiated thing. In fact, there are distinguishable at least three sugges- tive elements, the will or intent, the meaning, and the motive. There is a will or intent to use certain words. There is also a meaning or sense attached to those words. And there is a motive or object desired to be attained by those words. In the interpretation of the documents of private law this distinction is a familiar and important one. The first element, the will or intent to use certain words, seldom gives opportunity for doubt in dealing with legislative enactments. The second element, the meaning or sense of the words, in particular or as a whole, begins to open a wide field for speculation. By the general principle of interpretation in private law, the objective standard now becomes dominant; i.e. not the word-usage of the xxxiv EDITORIAL PREFACE individual, but that of the community, may be control- ling. Here the judiciary function obtains a large scope. The third element, the motive or object desired by the legislators, opens a still wider field. Here the individual motive of the legislator or voter may cease to have any value for purposes of control, not only because it is often unascertainable, but also because it is so variant. An amusing illustration is afforded in the votes at a presidential election. The chronicles of the daily newspapers show that out of any hundred voters, of whom fifty are declaring for Mr. Wilson and fifty for Mr. Hughes, each respective fifty express the most variant and conflicting motives for their votes. Only their votes agree ; their motives may have nothing in common. If the vote were to be taken on each one of the twoscore motives or objects assigned, and not on the simple choice between two men, the alignments of the hundred voters would differ on each of the two score of ballotings. What does this illustrate? That to control the judiciary by the supposed motive or object of the legislators is to prescribe a standard im- possible of practical use, except in an occasional clear and undisputed instance. (c) And this brings us to another stage of the inquiry, to the question whether, since the legislator's sub- jective standard of motive or policy is an impracticable criterion, an objective standard may properly become available, viz., either the general policy as felt and con- ceived by public opinion at large with specific reference to the legislation in question, or the general policy of the needs of the community as determinable by the judiciary themselves. Needless to say, public policy in one of these senses, is and has been and always will be more or less con- sidered by the judiciary. The question for the jurist is: THE JUDICIAL FUNCTION xxxv Where does this criterion belong in the orderly scheme of Judiciary Interpretation? What are the just and knowable limits for its invocation? Enough here to suggest that this question cannot be answered without first testing the validity of some of the conventional assumptions above noted. (3) In the third place, how far is legislative lan- guage inherently incapable of controlling the judiciary? This involves the logical nature of jural thinking. Words are but symbols. They compress into a single symbol a complex process of thought, and compression signifies exclusion. Thus the person whose duty it is to apply the words of a statute must reexpand the thought when applying it. And thus arise unlimited opportunity and necessity for the judiciary to recon- struct the thought by its own standard of experience, which may and must often differ from that of the legis- lators. If we recollect the differences of personality and community, and add to those the differences caused by lapse of times and change of environment, we shall realize that words are far from fixed things; they are the most fluent and indefinite of things. There used to be an ancient milestone in the town of Cambridge, Massachusetts, opposite Harvard Col- lege ; and on the imperishable granite was engraved in sturdy crude characters: "1734. Boston, 7 M." Now for the students of the college it was a perpetual wonder how that milestone-maker could have proclaimed the falsity that Boston was seven miles away; for it lay plainly in view only three miles away across the Charles River, by easy walk across the bridge. But the anti- quarian could have told them that in the year 1734 Boston was seven miles by road from Cambridge; for the bridge did not exist in 1734, and the traveler must pass by a long detour up the river bank to a crossing, xxxvi EDITORIAL PREFACE / which made his journey seven actual miles, as the milestone-maker faithfully recorded . Time had deprived his words of any true meaning. This logical impossibility of fixing thought by a word- is of course most strikingly seen in these changes gene- rated by time, in the questions whether automobiles are "vehicles," under laws of sixty years ago requiring towns to maintain roads in good repair for vehicles; whether phonographic disks are "copies" of music entitled to protection under a statute enacted before the phonograph was imagined; and so on. But it is also inherent in enactments not affected by changes of time or place. The citizenship of a corporation under the Federal Judiciary Act; the scope of a work- men's compensation act denned as applying only to injuries received "in or about" the place of employ- ment; the voidness of a bequest to a will witness who is a "beneficiary" under the will; these and a thousand other instances illustrate the truth. But this is only the simplest form of the difficulties that arise from the inherent logical impossibility of controlling the judiciary by the words of a statute. For its more subtle aspect, and its more profound origin, the reader is referred to the masterly essay of Dr. Wurzel, on "Methods of Juridical Thinking," included in this volume. 3. A further great inquiry is How far is the judge controlled by his own prior declarations? the question of Judiciary Statification, of stare decisis. Here one asks at the outset, Why should the judge be expected to follow his own prior declarations? And the immediate answer, of course, is: Because the in- herent nature of Law as contrasted with non-law lies in its uniformity; and a fundamental postulate of our THE JUDICIAL FUNCTION xxxvii system is that Justice (the settlement of the individual's share of anything in life, when disputed by another individual) is to be sought through Law. Reserving the right to ask whether uniformity as an element of Law (the abstract) necessarily involves uniformity as an element of Justice (the concrete), we may proceed to ask, What are the advantages attri- butable to uniformity? And here the answer generally conceded seems to be that three desired advantages are thus secured: viz. Equality, Stability, and Certainty. So that our question becomes : How far does stare decisis tend to secure equality, stability, and certainty? (1) Equality is not a product for which stare decisis is necessary. Equality is something desired for the persons now under the law; it does not call for sameness of treatment between those of the present and those of the past or the future generation. Gompers need not receive equal law with Hampden or with the citizen of Utopia, provided he receives equal law with Harriman. Allowing, therefore, a short time before and after now as necessary for the consciousness of equality with our own generation, equality calls for no longer period of stare decisis. (2) Stability is indeed a product of stare decisis; but the converse proposition, viz. that stare decisis is invariably necessary to stability, is not true, and yet this converse proposition is the one ordinarily implied. In so far as the faith of contracts is involved, and the security of property, there must be adherence to prior declarations of law in so far as such faith and such security have been rested upon them, but so far only. And does a change of rule in a new concrete case necessarily affect prior contracts and properties? If a Supreme Court to-day holds that a contract is formed by deposit of an acceptance in the mail box, changing from the rule xxxviii EDITORIAL PREFACE that arrival of the acceptance forms the contract, may not this leave valid all relations effected before the promulgation of the decision? In other words, stability is wanted for the sake of the concrete relations of indi- viduals, not for the sake of the abstraction; and the former can be preserved, by exception, without pre- serving the latter. The legislature makes no scruple of following this distinction; every volume of session laws contains statutes ending with the proviso that "this act shall take effect from January first, and shall not be applicable to any contract made or cause of action accrued prior to that date." Why could not the judicial doctrine of stare decisis be applied with the same restriction? It would be an interesting experiment. (3) Certainty is the third supposed virtue of stare decisis. The theoretical value of certainty, and the best feasible method of securing it, are interesting questions. But it is difficult to reflect on this part of the question without emphasizing the pragmatic ele- ment. For the inquiry presses, How far indeed has certainty been secured by our practice? Would a less frequent invocation of stare decisis have given the community less certainty in justice? Is the degree of the present obvious lack of certainty due to other causes, or to the inherent impotency of stare decisis for that purpose? In countries like France, which started a century ago with the negation of that prin- ciple, but gradually came to recognize it to a degree, has there been adequate certainty? And, if we look away from the community at large to the profession of law practitioners, how far may we suppose that the laudation of certainty has been due in part to mere mental convenience of the profession? Such a nai've confession as that of Lord Ellenborough we do not often receive, but its significance is radical: "If THE JUDICIAL FUNCTION xxxix this rule were to be changed, a lawyer who was well stored with these rules would be no better than any other man that is without them." There is much more to this theme. But again it is a place where conventional assumptions must be challenged. And the essays in this volume supply that challenge. 4. And still another question remaining is, What can furnish the judge any other guide or control, superior to his own momentary and unformulated sense of justice? the question of Judiciary Rectification. The judge must be "rectified," we all assume. That is, in applying abstract Law to do concrete Justice, there must be some standard of guidance for him. We do not want the meaningless Justice of the traditional Arabian sheikh, the justice of individual whim and momentary notion. If, then, he is not to be mechani- cally controlled by statute and by precedent, what shall be the substitute? The relaxation would not necessarily be as cataclys- mal as it might seem. There will always be a con- trolling influence by the abstract law, wherever a professional class fills the bench. This has been so from the time of the priest-judges of primitive times until to-day. Moreover, there is a large material fur- nished by common sense (common and undisputed, that is) and by common policies. Beyond this lies a field of questionable scope. And no doubt there is room for speculation as to the use of this field by the judges. Can they safely be turned loose into it? This is the problem of a "freie Rechtsfindung" and "libre recherche," the needs and dangers of which are dis- cussed in this volume by the trenchant pens of Geny, Ehrlich, and other jurists. xl EDITORIAL PREFACE Let us not minimize these dangers; let us merely not exaggerate them. And, for consolation in the prospect of them, let us recall at least two relevant circumstances: (a) In the first place, our own Supreme Courts have long been drawing copiously and consciously from this unbounded field of public policy. The opinions are full of such discussions, and some of the greatest ques- tions of the day have been settled with no more definite guidance and control. Examples taken at random are the decisions settling the law of illness caused without impact (nervous shock, "railway spine," etc.) where the known conditions of modern personal injury litiga- tion have furnished the main grounds of judgment; the law of releases signed by patients in a hospital, where the apparently fixed principles of documentary execution have been subordinated to the policy applic- able to such a situation; the law of privilege for torts in general, where modern conditions have at many points required sole reliance upon neither precedent nor statute. And this list might be indefinitely en- larged. An extension of this field of "libre recherche" would be no novelty in method. (b) In the second place, the judge's liberty could in any event not exceed that of the legislators, whose liberty (and license) of reasoning we have long viewed (and suffered) with equanimity. Reflecting on the debate that occurs in a judiciary committee of the legislature, when an ordinary measure of private law is presented, what is the range of reasoning? What of the personal oddities, the maddening irrelevancies, the ignorant assumptions, the crude philosophies, the fragmentary conceptions, the narrow outlook, the obstinate bias, the stolid indifference to facts and needs? These legislators, in their motives and reasonings for a declaration of law, have a "libre recherche" indeed. But THE JUDICIAL FUNCTION xli we have accepted it as a matter of course. Why not accept it for the judges also? This part of the problem after all is not so trouble- some, perhaps, as another part, viz. the necessity for drawing the line. A line must be drawn somewhere (by hypothesis) between the judiciary operation and the legislative operation, so long, at least, as separate officials are maintained for the two general purposes. Now when a concrete case is presented to the judge, in what classes of cases should he refrain from "libre recherche," assuming that no statute is involved? How shall those classes be denned? For example, if an action of nuisance were to be brought against a liquor-seller, but no statute be pro- duced declaring liquor-selling to be illegal, might a court, if it entertained the conviction that liquor-sell- ing was deleterious to the local welfare, and that this liquor-seller's business in particular was of that quality, declare such law and restrain the further conduct of that business? That particular topic has hitherto been deemed to be subject only to legislative declaration of law; and the policies pro and contra have formed public issues on which legislatures have been elected. We may suppose that any definition of the line between judiciary and legislative functions would desire to allot this topic to the latter. But what definition will dispose workably of that and like topics? Here we get a glimpse of an important argument against the extension of "libre recherche" free range of decision for the judiciary. That body's function of doing Justice can best be performed in independence, free from the pressure of public clamor. If then we permit them to enter (more freely than now) the field of public policy, we subject them to the loss of that very independence which on other grounds we seek to xlii EDITORIAL PREFACE secure for them. The legislature is the body that responds to momentary public opinion and registers the will of the majority. Do we wish another body to duplicate that function? Do we not need one body of justice-dispensers which shall be primarily concerned with the technical material of the law, and independently engaged in developing it? Does not the vital difference between judiciary and legislature lie in the fact that one should be responsive to popular opinion and the other should be independent of it? And, if so, can we guarantee this in any other way than by our traditional system ? There may indeed be a fallacy here, in these ques- tions. For is it correct to assume that even the legisla- tors ought to be responsive to current public opinion? Is that consistent with representative government? Should Demos be voiced directly on the legislative benches; or does not the best tradition of our fore- fathers demand rather that the legislator should be an independent thinker, expert in the subject for legis- lation, a guide, and not a mere messenger for the mass of the voters? These questions disclose, at any rate, the complexity of the problem, and verge closely upon our next theme, the Legislative Function. N J. H. W. II. THE LEGISLATIVE FUNCTION Everyone, it is true, may frame an hypothesis as he pleases, but yet it ought to be practicable. Aristotle, "Politics," bk. ii, ch. vi, 126oa. Problems of legislation touch the field of science in two ways: in matters of form, and in questions of content; or put in terms which are beginning to find acceptance and definite meaning, these problems are those of legislative technic and of legislative policy. In this volume a number of chapters treat the diffi- culties, or some of them, of legislative technic; but little will be found, except by way of suggestion, as to legislative policy, i.e. the kind of legislation which the State should attempt, or the method which should be pursued in developing legislative ideas. This lack of specific cultivation, in this volume, of questions of legislative policy is not merely accidental, but appears to be due, primarily, to the silence of literature 5 * A number of volumes, in truth, may be found which bear the hope- ful titles "Principles of Legislation," or names of similar import; but. unfortunately, none of these works treats legislative policy in a logically comprehensive manner, or even points out the methodological criteiia of what legislation should or may accomplish. See Mably, "De la legislation ou principes des loix," Amsterdam, 1777: also in his "CEuv- res," 15 vols., Paris, 1794-5; Justi, "Grundsatze der Policeywissen- schaft," 3d ed., Gottingen, 1782; Filangieri, "Scienza della legislazione," Napoli, 1783: also in his "CEuvres," 5 vols., and commentary by Con- stant, Paris, 1832; Bentham, "Principles of Morals and Legislation"; Comte (Charles), "Traite de la legislation," 4 vols., Paris, 1835; W. Jethro Brown, "The Underlying Principles of Modern Legislation," London, 1912. It is quite true, however, that from the vast literature dealing with expository, philosophical, and historical views of Law, Society, and State, a large number of ideas might be gathered which would represent, among the rest, such names as Plato, Aristotle, Vico, Aquinas, Monies- xliv EDITORIAL PREFACE a silence which may seem, in the great multiplication of books and essays, and the wide diffusion of ideas of every sort, a strange, if not unbelievable situation. 6 I. The intellectual effort of the centuries devoted to the theoretical side of legal institutions has centered on such questions as the concept of justice, the nature and sources of law, the origin of government, the best form of the State, the idea of sovereignty. The natural law view has had, and continues to have, a dominant position in these studies, and has, unfor- tunately, distracted attention from the what is to that, which, by supposition, in the order of nature or of reason ought to be. The facts of life have been taken for granted by this attitude. It has been assumed throughout not only that the phenomena of society are fully under- stood and within the grasp of that quality of mind which more than once has claimed all philosophy for its province common sense but, also, that these phenomena are at all points under the potential control of lawmaking. Nothing is more familiar than the naive thought that a social evil, real or apparent, being dis- covered, nothing further remains than to enact a law of some sort, whereupon the imperfection aimed at may be expected automatically to disappear. On a basis of procedure in close connection with these misconceptions, the task of legal science was thought quieu, Savigny, Herder, Buckle, Bentham, and Tarde, or to call upon the volumes in this series for inspiration, the names of Ehrlich, Geny, Jhering, and Kohler. But to make a selection of coherent ideas from sources so diverse in starting-point and outlook would of itself involve a creative effort comparable to an original statement and elaboration of the essential problems. One important exception must be noted in Kohler' s "Lehrbuch cler Rechtsphilosophie," translated in this Series (by Albrecht), which appears to be the most profound systematic contribution yet offered in the field of legislative policy. The value of this work deserves to be better recognized. THE LEGISLATIVE FUNCTION xlv to be that of explanation or criticism of legal institutions in the light of nature or of reason. It will be convenient to discuss the last proposition, before attempting to deal with the problems and the methods of legislative policy. 1 . First, legal phenomena were thought to be explain- able as purely natural phenomena, with laws analogous to, or even identical with those of the physical sciences. 7 In a purely mechanical sense there were in the evolution of legal phenomena "corsi" 8 and "ricorsi" and even spirals 9 ; in a biological sense, 10 heredity, selection, differentiation, and survival. 11 Neither do we question that such explanations, in their larger bearing, are both interesting and important, nor, in the same ampli- fied meaning, that these speculations are based on an element of truth indicating an intimate mutuality and relation among all the facts of life and nature. The subject is one which has been so often and so fully considered that it is sufficient here merely to suggest these theories with qualified adhesion to their scientific value, and to point out, what is important for our present purpose, that this immobilism of social phen- omena, to the extent that such phenomena are held 7 Derivation of language by reference to a physical basis is an interest- ing illustration of the same idea. Jus, to take an example in legal terminology, is thought to be traceable to the Aryan root Yu, meaning to bind or join together. See Jhering, "Geist d. rom. Rechts," i, 218 (6th ed. 1907); and contra Breal in Nouv. Rev. Hist. vol. vii (1883), 625. 8 Cf. Vico, ''Scienza nuova"; cf. del Vecchio, "Formal Bases of Law," pp. 27 seq. s Grasserie, "Principes sociologiques du droit civil," Paris, 1906; "Prin- cipes sociologiques du droit public," Paris, 1911, p. 13. 1( > Cf. Kuhlenbeck, "Natiirliche Grundlagen des Rechts und der Politik." 11 In this connection, see, for an application of ideas of organic life to the social composition, Schaffle, "Bau und Leben des sozialen Korpers"; Spencer, "Principles of Sociology"; Espinas, "Les Societes animales," p. 128; Demoor, Massart, and Vandervelde, "Evolution by Atrophy," (Mrs. Mitchell's tr.), N. Y., 1899, pp. 7 seq. xlvi EDITORIAL PREFACE within its iron grasp, holds in check also the legislator, bending his will to the prevailing recoil of life, or break- ing it when it stands in opposition to its superior force. 12 2. Again, the attempt has been made, not simply to explain legal phenomena on the basis of uncon- scious nature, but to evaluate them by nature, predicat- ing of legal ordinances and legal institutions, the quality of good or bad, as they conform, or fail to conform, to the natural order of things. 13 It is clear that the law to be workable must recognize the order of nature in delimiting rights and duties, lib- erties and powers, and capacities and incapacities. To invest an infant with regal power, while an important ceremony for continuing hereditary succession, is of no significance otherwise at the moment. Legal relations to a very considerable extent are fashioned by the pat- tern of successfully asserted natural wants, capacities, and conditions of life. This appears plainly in all legal institutions and especially in a direct way in the field of the law of persons. 14 The various forms of kinship relation, marriage restrictions, family, clan, and tribal duties matriarchy, patriarchy, exogamy, endogamy, the levirate, patria potestas, agnation, perpetual >' Incidentally, this point of view has the juristic mission of invalidat- ing the imperative theory of law in its application even to civilized societies. Cf. Maine, "Early History of Institutions," Lects. 12, 13; Bryce, "Studies in History and Jurisprudence," ii, 44; Salmond, "Juris- prudence," 3d ed., pp. 48 seq. 18 Thus, from this standpoint, Aristotle recognized a class of slaves who were such by nature. "That being who by nature is nothing of himself, but wholly another's, and is a man is a slave by nature; and that man who is the property of another is his mere chattel, though he continues a man": "Politics," cap. iv, 1254a seq. "Cf. Dig. 1, 1; 1, 5, 14; 1, 5, 24; 1, 7, 1; 1, 8, 2; et passim. Thus, it provided (Dig. 1, 7, 15, 3) : "Moreover, a man ought not to arrogate someone else's freedman, nor a person who is older than himself; as (16 h.t.) the adoptive relation is only allowed between those persons between whom the natural relation might by possibility have existed." There- fore, Cicero says, adoption of an older person is not only "contra fas" but "contra naturam." THE LEGISLATIVE FUNCTION xlvii tutelage, clan fraternity together with their modern developments no doubt found their earliest suggestion in a rita discoverable, or thought to be discoverable, in external nature. Process of time has materially altered the interpre- tation of nature, and on individual questions, such, for example, as that of human servitude, conflicting ideas of natural reason have sprung up; but the fundamental thought of the ancients (apart from religious commands and economic considerations which must have an explana- tion of their own), that restrictions upon liberty in the field of personal relations have an objective natural basis, remains valid into the present day. 15 The varieties of matrimonial regime, disabilities of minors and married women, guardianship, support statutes, and the like, are patently based on natural incapacities, and natural duties, or powers. In this direction, however, some fanciful explanations have appeared which attempt to explain or to criticize the rules and institutions of positive law by way of analogy with, or description of, the phenomena of the external world. 16 The facts of nature cannot be ignored, ls This objective basis of human relations represents the classical concept of natural law. See Geny, "Science et technique en droit prive positif," ii, 274. 14 Pythagoras furnishes one of the earliest examples. According to him justice is the equally equal number. Various interpretations have been given of this formula, and numerous attempts made to select the specific number intended. In passing, one more solution may be here recorded. The magic number symbolizing justice may well be the digit 9, which will be found, by the various manipulations to which it submits, always to result in itself. Thus 1+2+3+4+5+6+ 7 + 8+9= 4(+)5= 9. Again 9 + 9= 1 (+)8= 9. And 9X9 = 8(+)l = 9. Lastly, progressive multiplication of the digits (1X2X3, etc.), and final multiplication or addition of the result, gives the same answer. Cf. Berolzheimer , "The World's Legal Philosophies" (Mrs. Jastrow's tr.), pp. 52 seq. Illustrative of the proposition under consideration, it was said by Comstock, J. in Kimberley et al v. Patchin, 19 N. Y. 330: "No person can be said to own a horse or a picture unless he is able to identify the xlviii EDITORIAL PREFACE but it is always a token of an immature legal develop- ment when the juridical sphere is dominated by or confused with other fields of thought. 17 Juridical law is autonomous, and as a human institution designed for regulation of human relations, it cannot be governed by nature or external facts any further than these facts are themselves manifested in legal relations. The last stronghold of the influence of alien fields of thought upon the making and application of legal rules is the domain of the ancient formal sciences, logic, 18 chattel or specify what horse or what picture belongs to him. It is not only legally but logically impossible to hold property in such things unless they are ascertained and distinguished from all other things." This rule, the court says, may be "fitly called a rule of reason and logic." The concept of equivalence taken from nature has been a very impor- tant factor in the construction of legal rules. A complete investigation of this idea would be interesting and valuable. A single instance may be tendered. In the old common law an instrument under seal could only be discharged by a like instrument. Performance did not suffice (Leake, Dig. Con. 877). A recent writer arrives at some remarkable conclusions based on natural law; e.g. that a foetus is owned by the mother and that the law has no control in the matter until it becomes a legal subject: Poche, "Die Stellung des Kindes gegeniiber den Eltern vom Standpunkte des Naturrechts," Berlin, 1907. A further illustration of the text is furnished by descent per stirpes. See Kohler's description of "Stammteilung" in his "Lehrbuch der Rechts- philosophie," 135. For a variety of other examples showing that natural law was regarded by Roman jurists as a part of positive law, see Kor- kunov, "General Theory of Law," 123 seq. " The confusion in early codes of regulations of what, in a later period, are called liberties, with duties, has often been pointed out. See, particularly, the Pentateuch, Code of Manu, and the Koran. Cf. Dig. 1, 2, 8, et seq. The present-day tendency seems again to be in the direction of narrowing the field of liberty. This tendency may be expected to increase to the extent that modern society inclines toward the solidarity of primitive ages. The psychologic basis of this movement will, of course, be entirely different from that which actuated primitive man. The primitive "law of participation" which had a mystical quality which ignored the logical rule of contradiction, will be replaced by a material law of participation founded on economic concepts. Cf. L'evy-Bruhl, "Les fonctions mentales dans les societes inferieures," Paris 1910, pp. 68 seq., 425. 18 There is another abuse of logic which is as objectionable as the kind above pointed out. It consists in the over-refinement of distinctions to a point where the law in its system becomes too esoteric even for the THE LEGISLATIVE FUNCTION xlix mathematics, and mechanics. The maxim that every beginning or change must have a cause is comparable to the rule of no liability without fault. The rule that something cannot come from nothing has its counter- part in the doctrine that one cannot transfer more than he owns. The law of excluded middle, that every- thing either must be or not be, which presents sufficient opportunities even in the field of logic for misapplication, as every undergraduate knows, has been carried over into many rules of law. In fact, the entire field of common law is one of excluded middle. The Euclidean mathematics and the Aristotelean logic now appear to be in discredit, but in an earlier generation they doubtless have exercised an important part, in the manner suggested, in the construction of juridical rules by way of analogy and description. The difficulty of their employment in the law lies first, in the narrowness of their operation, and second, in a difference of objects to be attained by these formal sciences, on one hand, and the law, on the other. This may be illustrated by the fact that where in logic there are two possible alternatives, three will be found in mathematics, and an indefinite number in jural relations. 19 3. In the effort to explain legal institutions by reason a purely deductive position is taken. Thus as del Vecchio puts it, "the formal concept of law is implied in the knowledge of any juridical fact whatso- ever" . . . , it "is not created by the fact in learned. The case system of law lends itself especially to this tendency, where distinctions urged by the necessities of counsel have in some fields reached the point that logical generalization is impossible, and each case, in effect, in that field, is a general rule of law. See, for an example of this, Calumet and Chicago Canal and Dock Company v. Conkling, 273 111. 318. 19 The necessity of the deductive method for making practical and com- prehensible the data of legal science is, of course, admitted. The point under discussion will not be confused with that question. Cf. Cohen, "The Place of Logic in the Law," 19 Harvard Law Review 622 seq. 1 EDITORIAL PREFACE which it attains concrete existence." 20 The attitude here represented is entirely unhistorical, and, in the main, unfruitful for legislative objects. It may well be that mathematical or logical form constitutes a prius, but it follows, by no means, that the content of these forms is determined by preexistence of form. It is conceivable that organic life may exist without the social phenomenon of law, and to assert under such conditions the logical priority of law, requires the asser- tion equally, for the sake of consistency, of all other possible relations and conditions. 21 Law is not a supernatural product or an issue of pure reason; it is not even the mandate of a sovereign, or the will of the people. We shall not here add another effort to hundreds of attempts to define the law 22 ; but we urge with considerable confidence that the standard of intellectualism unaided by experience, at one pole, or fortified (by rare possibility) by intuitional insight, at the other, can never become a profitable basis of action for the legislator; and that such a pro- cedure can have no beneficial practical issue except on the basis of disguised motivation. 23 20 "Formal Bases of Law," cap. x. n The objection of de Maistre quoted by del Vecchio (op. cit. p. 117) and said by him (del Vecchio) to rest on an old sophism, has all the appearance, although in left-handed style, of a complete answer to the attempt to make a universal of the concept law. De Maistre says: "I have seen in my life, Spaniards, Italians, and Russians, and I even know, thanks to Montesquieu, that there are Persians, but as to man, I declare that I have never come across one in my life. If he exists, I don't know it." 24 For collections of definitions, see Riimelin, "Eine Definition des Rechts"; Baumstarck, "Was ist das Recht?"; Holland, "Jurisprudence" llth ed., pp. 20, 43; Korkunov, "General Theory of Law," (Hastings' tr.) pp. 79 seq.; Trendelenburg, "Die Definition des Rechts"; Pound, "Theories of Law," Yale Law Journal (Dec. 1912). *' Berolzheimer has pointed out the great social and political impor- tance of this principle, giving credit for priority of statement to Georg Adler, "Die Bedeutung der Illusionen fur Politik und soziales Leben," Jena, 1904 "The World's Legal Philosophies" (Mrs. Jastrow's tr.), p. xliv. It may be suggested that the same idea is universal in nature, THE LEGISLATIVE FUNCTION li That illusory ideas and programs scientifically un- tenable are able very frequently to produce results in the world which are, or at least appear to be, valuable in the light of finite wisdom has often been manifested. It was the deductive method with its theory of per- sonality sprung from the virgin fountain of pure reason which served to free the State from the Church, estab- lished a theoretical equality among States, and gave a philosophical tone to the eighteenth century declaration of "rights of man" embalmed in political documents of the age. The after-effects are clearly visible at the present moment. These ideas did not take and retain hold in the political and economic life of the German States as in the Latin countries and in Anglo-America, and the result has been translated into what appears to be a contest for commercial supremacy which is now in the process of arbitration by the most ancient of courts the Supreme Court of War. 24 The role which these concepts have played in the private law of Common Law countries, and the difficulties which have been encountered in a con- ceptual change of front from individualism to socializa- tion of legal institutions, a movement which is only in the beginning stages, are chapters in a narrative which in recent years has been made quite familiar. 25 as may be seen for example in the inversion of the image on the retina, the apparent motion of the sun around the earth, refraction of light, protective coloring of plants and animals, etc. Deportment, morals, and fashion are so completely saturated with this principle that it may be said that they have no other rationale. Cf. also, Dernburg, "Die Phantasie im Rechte," 2d ed., Berlin 1894. ** "That ideas are more effective and important agencies in human affairs than events however massive that the Justice of Plato, and the Law of Nature and of Reason of the Stoics, will continue to influence men's thoughts and actions long after all Pragmatic Sanctions and Golden Bulls are dusty and forgotten this is a conclusion willingly embraced by most philosophei s, and by some historians." Hollands, "Nature, Reason, and the Limits of State Activity," 25 Phil. Rev. 645. * 6 In America, especially by Pound. See his "The Scope and Pur- pose of Sociological Jurisprudence," Harvard Law Review, 1911-12, among numerous other writings of the same author. Hi EDITORIAL PREFACE That the attempt to explain the edifice of law by reason is one of the numerous variants of natural law also hardly needs to be mentioned. 26 It is assumed, furthermore, by the point of view under inspection, that history is the more or less perfect devel- opment of metaphysical purpose, of idea, 27 of an innate quality of rationality in human nature, or of a mechani- cal expression of social logic, 28 and it is thought that the chief function of historical investigation is to dem- onstrate and amplify the deductive or ideal process. 4. It remains to speak of the evaluation of legal insti- tutions by reason. The processes of criticism and expla- nation are very similar. Because of the different and often conflicting philosophical attachments which have grown up as the problems of society are considered from one angle or the other, and because the method of explanation, as we have found it convenient to pursue this discussion, relates concrete reality with a large outline of life with the oscillations of centuries from the point of view of external nature, or with a govern- ing principle in the sphere of reason, the method of criticism according to reason is given a separate place. This method differs chiefly from the rationalistic method of explanation in that it descends to details. It passes from the domain of ideas and abstractions 26 See, for the applications of natural law based on "common sense" in the creation of extra-constitutional limitations, protection of vested rights, liberty of contract, etc., Raines, "The Law of Nature in State and Federal Judicial Decisions," 25 Yale Law Jour. 617-657. * 7 Hegel, "Grundlinien der Philosophic des Rechts," pp. 18 seq.; "Phanomenologie des Geistes." Cf. from another camp in legal phil- osophy, del Vecchio, "Formal Bases of Law," p. 326: "we should look upon history, in its organic character, as the unfolding of an implied purpose. In this sense, the series of particular positive laws appear to us as unified by the tendency toward the development of natural law. This tendency grasped by the mind a priori as an absolute and universal necessity, superior and anterior to any application in experience, develops in it through a long and laborious historical gestation." * Tarde, "Les Transformations du droit," cap. vii, 7th ed., Paris, 1912. THE LEGISLATIVE FUNCTION liii to a world of concrete things. It is not sufficient for the purpose that legal phenomena be encompassed under a bloodless concept, but they must be practically weighed and measured and rated according to their worth. But the process of transition is full of pain and perils. In passing from the sphere of idea to the world of actual things an abridged and unfathomable gulf must be entered. The journey may mean forget- fulness, and emergence new birth. Therefore, the attempt to evaluate legal notions and practices by the aid of reason alone, is likely to become a subjective method which may claim a far-removed philosophical ancestry, but which has lost its metaphysical documents of title. 29 There are two leading logical varieties in modern times of the rationalistic method, reducible again to many subdivisions. The first is the eighteenth cen- tury type of natural law distinguished from other types by the effort to discover fixed concrete rule of law superior to positive law. 30 The second variety is one which has an important and arguable philosophical basis that has been made familiar by the phrase "law with a variable content." 31 However, the topic of As, for example, Boistel, "Cours de droit naturel," Paris, 1870, pp. 28 seq., who allies himself with Rosmini, and with general ideas which go back to Plato. Q.Gtny, "Science et technique en droit privepositif," seconde partie, Pans, 1915, pp. 280 seq. See also, Bergbohm, "Juris- prudenz und Rechtsphilosophie," i, p. 35. 30 Based usually on a deductive principle gratuitously or fancifully derived, as is the case even with Boistel, who starts from "the inviola- bility of human personality." We must here record our failure to understand why the life principle extending even to crystals has not been recognized instead of drawing the limits about human beings, many of whom, in the lower stages at least, are hardly superior as social types to anthropoids. 31 M. R. Cohen, "Jus Naturale Redivivum," 25 Philosophical Review 761; Stammler, "Die Lehre von dem Richtigen Rechte," Berlin, 1902, pp. 137 seq. (Vol. viii in this series.) According to del Vecchio the concept of law does not involve a material content, since that would destroy the apodictic validity of the principle liv EDITORIAL PREFACE natural law is one of such amplitude, and, also, one made so familiar in all literatures 32 that our present purpose is satisfied in noting this intellectual phenomenon in its proper order in this discussion, without any effort further to indicate its influence. Summing up, the attitude of the whole period ante- dating the rise of historical studies was, in general, to regard all phenomena of social life as governed in their existence or their worth by laws readily discoverable in the bosom of external nature, or in the depths of the human mind. Exact information was entirely lacking touching either the causes or effects upon social life of legal phenomena. The facts were assumed, and generalizations were freely erected on these insecure pedestals. 33 Theories of law, of sovereignty, and of society contested with rival theories. States were overthrown, constitutions were born, and economic, legal, and political creeds blossomed, and bore their fruits in this cavernous soil. So far as there is implied in these statements a mis- guided or disguised motivation, there was not, however, anything unreal in this process of social upheaval. The clash of armies, the rise and fall of oligarchies and tyrants, the flux and reflux of commerce, and the chang- ing periods of economic dominance and dependence were very real facts. While the larger political and of law which involves only "the form of the idea of law, or that which necessarily appears in every juridical phenomenon." Law is, therefore, defined as "the objective coordination of possible acts among men according to an ethical principle * * * " "Formal Bases of Law," pp. 217 seq. 82 See, especially, Bergbohm, "Jurisprudenz und Rechtsphilosophie," i, Leipzig, 1902, pp. 12 seq. 331 seq. (for England and America) ; Ritchie, "Natural Rights," 2d ed., London, 1903; Pulszky, "Theory of Law and Civil Society," London, 1888. ' Cf. Comte (Charles), "Traite de la legislation," vol. i, p. 330. Buckle shows this in detail: "History of Civilization in England," vol. i, pt. ii, cap. xiii. THE LEGISLATIVE FUNCTION Iv economic movements of the world have invariably required, and been supported by programs, in which the event has always disclosed that the results attained have been miscalculated, 34 the illusion of purpose 35 when translated into fact became as tough a datum of experience as if fortified by an unassailable metaphysic. The rise of historical studies initiated a new method of thought. The purely deductive process which with- out experience was thought sufficient to account for the facts of social life, and which, likewise, assumed to be able to establish standards of value without investigating these facts, was replaced by the inductive procedure of history. This movement was all-embracing in scope; it affected not simply the social sciences but pervaded the whole domain of knowledge. Within the Historical School itself, the metaphysical element which inevi- tably enters every movement of large proportions to give it that rationalistic basis which seems to be demanded by the human mind, soon attempted to rise from the data of Roman law to a world-view of legal institutions, in a manner, as has often been pointed out, 36 which resembled the deductive method of natural law. The historical movement was quickly succeeded by positivism, on one hand, and evolutionary pantheism on the other. With the survival of an historically reno- vated form of Kantianism there was reached the stage 34 A sentence of Kohler's is in point: "the ambition of a -half-bar- barous Macedonian demolished the Persian empire, and a flood of Oriental culture poured out over the Occident." "Die Entwicklung im Recht," xiv Griinhuts Z. 410 seq. The inherent difficulty of forecasting, or even of explaining in social relations, the effect of conscious attempts to alter the course of human action is intensified if no effort is made to employ the various available sources of knowledge which deal with social facts; and "whatever social laws we may be able to discover will always be marked by a character of contingency much greater than in the case of other scien- tific laws." Tanon, "L'Evolution du droit," p. 65. Cf. Bergbohm, "Jurisprudenz und Rechtsphilosophie," i, pp. 480 seq. Ivi EDITORIAL PREFACE represented at this moment in the field of legal philos- ophy, by two forms of realistic idealism Neo-Hegelian and Neo-Kantian and the various other types of idealism and realism. So far as concerns legislative method there appears to be entire unanimity among all legal philosophers on the acceptance of experience. Differences will be encountered only in matters of detail on the procedure, and in the interpretation, of the results of experience. This fact is one of very great importance for the future of social institutions, and it may be expected when the profession of law arises to a "Weltanschauung," that the law itself, aided by the suggestion of new social ideas, will commence a development comparable to the progress seen on every hand in the domain of the natural sciences. The possibilities of human endeavor if not boundless have not been bounded, and the future holds not only the hope, but the reasonable promise of the greatest expansion of man's material culture, development of human power over the forces of nature, unfoldment of new wants and activities, abolition of all metaphysical restraints on freedom of thought and action, progressive diminution of poverty and disease, and at last, attain- ment of a stage where material necessity has been effectu- ally conquered and freedom actualized in its highest form. So much, at least, is conceivable without enlarging the horizon of the factors of knowledge. From the standpoint of society as we now know it, this program it must be acknowledged has an Utopian quality; but yet it cannot be denied that the first steps have already been taken and that something of the kind indicated is the hope and wish of the average social philosopher. The fact also must be admitted that the process of realization must be one of centuries, of many centuries perhaps, if it is not even arrested by a .social or natural THE LEGISLATIVE FUNCTION Ivii cataclysm. Our interpretations of life will differ, and there will remain contests as to what is desirable, on one hand, or feasible on the other, which cannot be arbitrated; but there is still a large field of problems where substantial unanimity is attainable. In attaining whatever may be thought to be the ideal form of society, it cannot be too often emphasized that there are certain rigid limitations existing in the nature of society itself upon the efficacy of law. We cannot legislate at will an ideal condition. The law is a dead letter unless "it works"; and it will not work unless and until it is adjusted to the material and psychic conditions of the society in which it is to operate. 37 It is a truly remarkable situation that with the greatest development of legal learning there is the scantiest knowledge of the actual operation of legal rules. Law- yers, lawmakers, and law teachers are occupied with the conceptual problems produced in great abundance by the creation of legal rules, but, strangely enough, they do not know how these rules are being realized, if at all, in actual life. 38 II. It may be useful to indicate briefly some of the legislative problems as to which it is essential for the lawmaker to take a definite position. First, what of the equilibration of interests of which much is said in the first division of this book? Why should interests be balanced at all? Why should not "It is one of the mosMmportant constructive proposals made by Pound, to investigate "the means of making legal rules effective." "Scope and Purpose of Sociological Jurisprudence." 25 Harvard L. Rev. 514. 3S Ehrlich has been one of the foremost Continental writers to insist upon the importance of this knowledge of the actual social operation of law. See his "Grundlegung der Soziologie des Rechts," Leipzig, 1913; Manigk, "Erforschung des lebenden Rechts," xxx Oest. Zen- tralblatt 709. A valuable reference list is entered in Cosentini, "La riforma della legislazione civile" (1911), p. 285. Iviii EDITORIAL PREFACE the legislator (or the judge when creating a new rule of law) resolutely choose the better or the best among conflicting interests? Again, what is the better or the best, and what is the standard? On the first question, Berolzheimer, speaking for himself, if not for his school, advocates conscious choice, where choice is possible, and points out that the course of legal evolution has not been a process of tight-rope walking, and that interests in conflict have not balanced, but that one has annihilated the other. This point of view recalls again what in this period of turmoil, which has overtaken nearly every quarter of the globe, is a dominant thought. Are struggle and force and con- quest with all that they imply of cruelty and bloodshed a necessary foundation of human progress, and a rule of life? And what shall be the attitude of the legis- lator on these questions in the various ways that they touch the legal establishment? 39 What position is to be taken with reference to mediate and final ends? This question is usually of importance also in legislative technic where the prevailing practice tends to very restricted purposes. Undoubtedly this is as far as expediency can go, but this admission develops another fact of great importance that the limited object sought, frequently is either missed or surpassed in a heterogeneity of ends. The question then arises, whether the legislator should not chart his course more remotely in practice. Such a solution, however, again involves other important consequences. The path of discretion becomes automatically broader. The result is agreeable to the tendencies of "freie Reehtsfindung," but is destructive of that fixation of concrete legal rules which is widely thought to be desirable in modern law. Cf. Jhering, "The Struggle for Law" (Lalor's tr.), 2d ed., Chicago, 1915; but see, Nasmyth, "Social Progress and the Darwinian Theory," N. Y., 1916. THE LEGISLATIVE FUNCTION lix A related question is the qualitative and quantitative relation which law should bear to social evolution. History has furnished its own solution. Law is the laggard behind custom. One of the chief purposes of the Sociological School of thought rests on this fact; and as we understand the proposal, it is contended that law should keep abreast of the march of social progress. 40 It is clear that a quality of flexibility in legal rules which will permit their adjustment to chang- ing conditions would raise difficulties especially with the certainty thought to be desirable in legal standards; and, also, there are spheres of law where uncertainty would be destructive of the chief purpose of any rule whatsoever. This appears most clearly in the field of commercial law, where the certainty of the rule is more important, in many respects, than the force of compulsion behind it. If the law is to be made adjus- table to the facts of social and economic evolution, the principle of certainty must still be retained in those departments where it is more essential, for the larger purposes of the law, than justice in individual cases. At any rate, the distinction is one which the legislator must at least have in mind, however it may be disposed of. What solution is to be attempted of the competing claims among individual, class, social, and State interests? Shall private interests when in conflict with social interests always give way, and if so why? It is true that an affirmative answer is dogmatically given especi- ally by thinkers of the sociological group, but some- thing more than a dogmatic answer is necessary to eliminate the problem. What limitations shall be drawn on the dominance of State interests, and why? "One leading thinker, of the neo-Hegelian School, has even claimed for law the superior mission of leading the way. Kohler, "Philosophy of Law" (Albrecht's tr.)i pp. 58 seq. Ix EDITORIAL PREFACE What is the proper scope of law in modern society? What influence, if any, do changing economic conditions have in the consideration of the question? The cen- tralization and expansion of industrialism within recent years have brought a pronounced change in the scope of law. Liability now extends beyond the concept of fault and is now objectified and de-personalized as one of the ordinary risks of business. The State does not any longer permit an employer to assume all risks of negligence, but requires positive measures which reduce the probability of risks of injuries. The sphere of formal liberty has been reduced in a variety of direc- tions to a kind of status. 41 Regulations of building, sanitation, and (for public employees) of deportment, of the personal use of narcotics, of hours of labor, of methods of competition, and of other matters in a laissez faire regime within the province of liberty, have been recast on the models of the most ancient codes. Price and trade regulation has returned to the pattern 6f the Middle Ages. Not only has the sphere of formal liberty what in loose language one has a "right" to do- been abridged, but an entirely new concept has been introduced by modern legislation in the "right to work," a claim of the individual against the State itself. Enough has been said to show that the scope of law is not stationary any more than the rules of law. Should legislation be intrusted to experts, in analogy to the learned judiciary? In other words, should the process of legislating be made esoteric as is the case with Anglo-American case-law, or should it continue to be democratic, and, in the scientific sense, ineffective? Here, again the solution is not so apparent that he who runs may read. . Cf. Sir Frederick Pollock's note (L) to Maine's "Ancient Law"; Dicey, "Law and Public Opinion," p. 283; Pound, "A Feudal Principle in Modern Law," 25 Int. J. Eth. 22. THE LEGISLATIVE FUNCTION Ixi Such are a few of the larger problems of legislative policy; and the mere statement of them, without any attempt at solution, is enough to indicate the important sociological, historical, and philosophical soundings which must be made before satisfactory answers may be ventured. III. This leads to a statement in a very summary way, also, of some of the present defects of legislative method. First, it is assumed that any normal adult is com- petent to legislate. The human composition of our State legislatures in average intelligence is a clamoring witness of this childlike belief; but, so far as we may intrude our views in a discussion not intended from a controversial point of view, we would regard it as fal- lacious to think that a legislature of academicians would work out any better practical results in the present state of legislative science. There is yet a golden mean. Another capital defect is the preponderance of subjec- tivism. The legislator takes for his standard of human conduct his own limited impressions of the nature of the world and seeks to thrust upon an incorrigible flux of social evolution his own subjective views, instead of taking the world itself as the standard. This error is in part neutralized by the inertia of the assembly; and the further correction comes, at last, in the actual play of legal phenomena. Then, and then only, is the objective standard realized. The next defect is that of ideality. This has always been one of the most conspicuous shortcomings of legislative policy. The possible is commonly disre- garded for the desirable, 42 or, more accurately, what is "I1 ne suffit pas qu'une reforme soit desiree; il faut qu'elle soit possible, et qu'on emploie des moyens propres a la realiser." Tanon, "L'Evolution du droit," Paris, 19H, p. 199; see, also, Vaccaro, "Les Bases sociologiques du droit et de 1'Etat," Paris, 1898, p. 4&6. Ixii EDITORIAL PREFACE subjectively found desirable. An exaggerated belief in the efficacy of legislation assumes perfect receptivity of the governed to every sort of legislative mandate. What requires to be urged against this mistaken opti- mism is that human nature must be taken as it is, with all its harshness, wilfulness, egoism, and unreason in short, with all its physiological and psychological wants and tendencies. There is a relation between the efficacy of legislation and human wants. What is not assim- ilated within the life of a people cannot have the force of law. Law, therefore, is a kind of organic growth 43 which may be affected by harmonious or inharmonious elements. The harmonious elements are readily assim- ilated and accord with the nature of the organism; the inharmonious elements are either cast out, remain in- active, or produce a pathological condition temporarily, and, in some cases, permanently, obstructing the normal development of social growth. 44 A last defect in legislative method which is in part the product of other defects, is superficiality. Anyone who has attempted to analyze or discover the plan of reasoning disclosed or undisclosed of a group, large or small, attempting to deal with a normative problem, cannot fail to be struck by the vagueness, shallowness, and incongruity which usually dominates the argu- ment. The diversity of views which are urged, each highly complex in itself, and the extent to which In this lies, as it would seem, the real strength of the doctrine of the Historical School, and again from another point of outlook of the school of Krause, ("System der Rechtsphilosophie," Leipzig, 1874, pp. 431 seq.). See the published presidential address of Elihu Root before the Ameri- can Bar Association, Aug. 30, 1916: "No statute can ever long impose a law upon [the people] which they do not assimilate," 2 Am. Bar Assn. Journal 751. 44 Perhaps the writer should here reassert that the use of language borrowed from physiology or biology has no other than a metaphorical meaning. The phenomena of society are sui generis, but the lack of well understood scientific terminology invites analogies in other fields. THE LEGISLATIVE FUNCTION Ixiii emotional bias enters, often make it difficult to look upon the resolutions of many minds, acting in the same dialectic, as products of reason in any proper sense, but rather as intuitional, or, perhaps, unwilled, phenomena brought into being under the illusion of consciously selected issues of the mind. IV. The foregoing discussion brings us to a considera- tion of the method and materials available to the legis- lator, and necessary to be employed to escape the criti- cism above raised. They are as follows: 1. The systematic or expository method must be carried out to a point of practical completion. That is to say, exact data must be gathered, (a) concerning the situation upon which legislation is to operate; (b) concerning the most effective measure to be applied; (c) and the effect upon the particular situation, 45 and the reaction upon other social habits by the enforce- ment of the measure selected. 46 In this direction, the legislator may find a working model in the methods of boards of directors of successful corporations. The existence now in a number of states of legislative reference bureaus is responsive to the thought, which is coming to be recognized that intelli- gent action and judgment, even in matters of legisla- tion, demands a satisfactory foundation of statistical "Prof. Edward A. Ross ("The Principle of Anticipation," xxi Am. J. Soc. 577) has pointed out that the distinction taken in legislation has been between near and remote consequences by way of an analogy borrowed from physiology. He argues that any established policy which affects persons favorably or unfavorably will be anticipated and will modify behavior; and that the social scientist and legislator must anticipate the anticipations. 46 Failure to take account of this reaction is shown in the actual social operation of the marriage evasion act in Illinois. See Bulletin of Chicago Legal Society, 1916, no. 2, in xi Illinois Law Review, (October, 1916). Ixiv EDITORIAL PREFACE information. The possibilities of the systematic method are of the greatest importance, and it is not unlikely, when it is fully developed, and becomes a regular instru- ment of legislative action, that legislation will cease to be an inferior legal product, but will take rank equal, if not superior, to judicial precedent. That the present method is inefficient and unscientific will hardly be denied, and that the legislative function must be raised to a higher plane of dignity, a dignity comparable to that of the courts, in order that it may satisfy its theoretical object, is obvious. It would, however, be a mistake to assume that an improvement in the human factor upon which legislation depends would of itself suffice. If the method itself does not im- prove, the good character of the lawmaker will not succeed in raising legislation from its present unscientific level. 47 However, the statistical method while indispensable is not self-sufficient, in the narrow sense in which the term "statistics" is here used, to furnish a scientific basis for legislation. 2. The historical and comparative methods are necessary to round out and humanize the results of statistical inquiry. This implies a broader kind of statistics based on legal history, comparative law, and legal ethnology. The rigor or extent of this program does not in any wise detract from its scientific necessity ; nor is the task involved in this demand so exacting as to be unworkable. The facts of human life are not detached points in space, but are expressions of a unified process the spirit of which penetrates the realm of history, giving it that rationality frequently discernible only after long periods Cf. J. H. McFarland, "Why Congress is Slow," Outlook, vol. 113, no. 9. p. 456. THE LEGISLATIVE FUNCTION Ixv of time, and that configuration which makes it possible to apprehend it as a thing of substance and continuity. 48 A mere accumulation of detached particulars does not constitute a history. The special value of comparative law lies in its power of suggestion, and in its capacity to afford vicarious experience. Legal ethnology has the function of making possible restorations of the missing pages of history especially in the earlier periods; and it is also a powerful auxiliary for understanding the ethnic soul, and for affording reliable criteria, under simpler conditions of life, of the efficacy of legislation in precisely those fields where there is not available the required statistical informa- tion. It is conceded here that under scientific observation, experiment is a method better than any of those dis- cussed. This has been the favorite resort of Anglo- America 49 ; but experiment has not, it is believed, been adopted as a method under the condition of scientific^ observation, and the results of legislative effort have been allowed to lapse into history. We have made experiments; but we have not profited by them. We have no means of knowing what we have experienced as a social fact. Experimentation of this kind is just as worthless in the field of legislation as it w r ould be in chemistry or physics. Again, mankind does not possess such reserves of spiritual force that it can afford to squander its energies in attaining at a loss what can be acquired with profit. Cf . Spencer, "The Sins of Legislators," Contemporary Review, May, 1884: reprint in "Man versus the State" Williams and Norgate, London, 1907; Am. ed. (Truxtun Beale, editor), N. Y., 1916: Comment by Prof. Harlan F. Stone, p. 237. * See General Introduction to this Series. Ixvi EDITORIAL PREFACE 3. The last method necessary for scientific law- making is the philosophical. 50 Demonstration of this claim to the utilitarian is a matter of some difficulty. The question is immediately raised in the language of one of Tchekov's characters, "What's philosophy got to do with it?" It may at once be answered. Phil- osophy is necessary for any valuation of empirical data. We may have collected with great diligence a great abundance of facts, but until these facts are funda- mentally evaluated, they are grains of sand having the quality of bulk, but lacking, nevertheless, the quality of cohesion. This may be demonstrated. A proposal for legislation is made. Let the question be raised, "What do you expect to accomplish by it?" Assume that an answer is given. Now, let the ques- tion be asked, "Why?" and let the same interrogation be repeated until the subject is exhausted; and it will be discovered that the proposal is based on a philosophy of some sort it may be very superficial, and hardly in an accurate sense worthy to be dignified by the term yet, it is a philosophy, or, at least, a tender of one. It will be the ultimate reason or explanation in terms which must involve, not the individual or indi- viduals standing alone, the group, the class, or the State, but the whole of reality. It may be objected that the interpretation may be erroneous. That possibility, nay, even the probability, is admitted. It may further be objected that there be at the same moment a variety of conflicting o Extreme statements such as that of Alvarez (p. 461 infra) "that philosophy of law has become synonymous with what is impossible and absurd," greatly overshoot the mark, and fail to be serviceable in marking the limits of caution and scope which should attend the use of meta- physical ideas. One even suspects that the learned author (Alvarez) has identified all philosophy of law with one kind of natural law. THE LEGISLATIVE FUNCTION Ixvii interpretations. That also is admitted. But, after all, there is a right interpretation, even though the human mind does not discover it, and even though we disagree in our efforts. And, in the meanwhile, though man doubts and hesitates, and holds tenaciously to the assertion of his primary wants, thinking and acting as his clan thinks and acts, the world is furnishing an interpretation of its own which is overlooked because we are a part of it. A. K. INTRODUCTION BY H. N. SHELDON 1 An essential element of such a series as this, consisting of master-works on jurisprudence and the philosophy of law, is a consideration of Legal Method, the mode of treatment of the concrete legal problems which are presented in practice, the manner in which the abstract legal principles that lie at the foundation of all jurispru- dence are applied to the task of reaching just and reasonable conclusions adequate for the decision of all disputed matters. The present book deals with this ques- tion of Legal Method, treating it mainly from the stand- point of Continental jurists, such as Professors Franc. ois Geny, Eugen Ehrlich, Geza Kiss, Josef Kohler, Heinrich Gerland, of different European universities, Justice Gmelin of the Stuttgart Court of Appeals, and Fritz Berolzheimer, the president of the International Society of Legal and Economical Philosophy of Berlin. Another noteworthy chapter, on Courts and Legislation, by Professor Pound, the Dean of the Harvard Law School, will attract special attention from the general reader, and that attention will be well rewarded. It is a study of the nature of law and of its creation and development by judicial decision and by legislation, treated both in the light of the past and in its application to the needs of the future, a development and application advan- tageously to be made, as Professor Pound concludes, by the empirical method of our Anglo-American law, assisted by proper legislation. Former Justice of the Supreme Judicial Court of Massachusetts. Ixx H. N. SHELDON It was said by Lord Campbell, in his "Lives of the Lord Chancellors," that "English lawyers, though very acute practitioners, have been rather deficient in the enlarged knowledge of jurisprudence; and that has been true also of the members of the American bar." This doubtless was due in large measure to the some- what haphazard method of legal instruction which had prevailed in both countries, by which the scientific element in the law was almost wholly overlooked. As has been pointed out by Professor Redlich of the Uni- versity of Vienna, in his recent report to the Carnegie Foundation, one result of the systematic instruction now given in most of our law schools has been to bring about scientific treatment of the law, which may be expected to cause, among scholars at any rate, increased regard for the element of science in the law and a real study of comparative jurisprudence. It may be hoped that this tendency will be increased when to what is called the case system of instruction shall be added a general indoctrination of students into a view of the law as one whole body, which, though composed of several departments, has yet an organic unity of its own. Such a spirit among students will not be contented until it shall have utilized the researches of European scholars in the field of law regarded both as an art and as a science. One of the objects of the present series is to contribute to the attainment of that end; and this volume, necessarily somewhat disconnected from being made up of the works of different scholars, has an impor- tant place in the series. Those who have studied exclusively the Common Law are accustomed to regard the cumulative effect of judicial decisions as being, with the additions and altera- tions made by statutes, the great guide to be followed in the practical administration of justice, as affording INTRODUCTION Ixxi the best means of reaching proper conclusions in the concrete cases that have to be decided between party and party. The following of precedents in matters which have been decided, the correct deduction from those decisions of the underlying principles upon which they have been rested, and the application of those principles to new questions, so that old and new decisions may by a process of natural development grow into a continually extending body of law, sufficient for the guidance of all members of the community, have been regarded as the safe method of judicial decision. No case, it is considered, stands by itself; no case is to be decided merely by a determination of what in the pecu- liar circumstances presented may be required by abstract justice, as the conception of abstract justice presents itself to the unlimited discretion of the court. On the contrary, each new question is to be passed upon in the light of rules already laid down, and in its turn is to provide both new rules and new modes for the applica- tion of old rules to the settlement of new questions; and English and American lawyers have been wont to believe that Continental jurists on the other hand, so far as they are not aided and governed by the positive provisions of a code or other statute, are taught to disregard precedents, to recognize no binding force in earlier decisions, but to endeavor in each case to do justice between litigants by determining, justly and in accordance with what Professor Geny calls the "per- sonal inspiration" of the judge, all the controverted questions that may come before him. It is true that in the Common Law not only do statutes play an important part in altering or abrogating rules and doctrines established by decisions, but the develop- ment and increasing intelligence of the people, their changes of opinion on matters of political science or of Ixxii H. N. SHELDON public or private morals, and even considerations of expediency, do affect powerfully, though slowly, the views of the judges, and do materially alter and some- times reverse the rules and doctrines affirmed by former decisions. So, too, upon the Continent of Europe, as is pointed out by Justice Gmelin and by other authors in the present book, it is the function of the judge, sub- ject to the limitations both of statute and of custom, "to contribute," as Professor Geny says, "to the creation of law and to develop further such law as has already been formulated." It results, if these contentions are maintained, that fundamently there seems to be not so wide a difference either in the object aimed at or (outside of certain rules of evidence or procedure not in themselves very material) in ths method adopted for reaching that object between our own courts and those of Continental Europe. Accordingly we should find in these pages much that will be of practical value to ourselves and our courts, as well as much that con- cerns chiefly the science of jurisprudence and the philo- sophy of law. Our authors, recognizing that within the region left to the judge outside of the bounds of statute or of custom, he must exercise his personal activity to perform the function which has been stated, have much to say about "the nature of that activity as regards the subject- matter to which it extends, the precise manner in which it works, and the foundations upon which it is based." The distinction between the two systems of law is brought out in the first of these points. According to Professor Geny and those who agree with him, the judge, when the formal sources are insufficient to pre- scribe his decision, should act according to the dictates of real justice, on the rule which a legislator would prescribe for just the circumstances of that particular INTRODUCTION Ixxiii case, abstaining carefully from laying down any abstract rule, but passing simply upon the concrete problem presented. The common law judge, on the other hand, (and some of the Continental jurists agree with this) though equally careful to consider all the particular circumstances involved, seeks in the light of the prin- ciples which have been laid down in other cases to determine those which should govern the case before him. It is for this reason that under the latter system the decision has the force of a precedent which is denied to it under the former system, although as to that matter the discussion of Professor Ehrlich in the second chapter on "Lawyers' Law" and the "jus quod est" should not be overlooked. It is both interesting and instructive to follow the keen and logical discussion of the question in many of the chapters of this book. Under both systems the object aimed at is to adapt the rules of law to the needs of social life. As was to be expected, the authors whose work is here presented / do not exactly agree just how this is to be done. But their discussion goes deeper than many of us have been accustomed to look. They are not content with saying that judicial decisions ought to depend upon the application of correct principles of law to ascer- tained facts; their effort is to show how, in cases not governed by rules already established, the correct prin- ciples of law are to be determined and so applied as to produce a just result. The fact that we who follow and administer the Common Law resort in such cases to reasoning from principles that have been laid down in previous decisions ought not to prejudice us against the different method advocated in some parts of this book of aiming directly at the ideals of justice and of general utility. It is to be regretted that the omissions which necessarily have been made from some of the Ixxiv H. N. SHELDON discussions have deprived us of a part of the context. What is presented, however, is ample to arouse interest, and it well may be hoped that many readers will be led to examine the subject further. We need not here consider how far the actual results reached by these methods of ascertaining and applying principles of law to new cases not absolutely governed by those principles will finally differ from each other. The object of all law must be not only to secure real justice to the community, but no less to make it certain that each individual shall be able to know in advance of judicial decision what are his rights and his obliga- tions, so that he may regulate his conduct aright. In the long run, that system or union of systems which best attains these results will be adopted. In the mean- time we cannot overestimate the importance of studying carefully every system for which preeminence may be claimed. It is believed that this book will be of material assistance in such a study, and all the more so from the different contentions made by the different authors from whose works it has been derived. INTRODUCTION BY JOHN W. A large portion of the present volume is devoted to the discussion by divers authors of the question of what is termed "free judicial decision" or "freie Rechtsfindung," namely, the deliverance of the administration of justice from undue submission to minute and rigid rules of law and the corresponding extension of the sphere of unrestricted judicial discretion. The question is one which has received but scant attention in English or American legal literature, but it is clear from the con- tents of this volume that it has been the subject of much consideration from European jurists and that it is one of grave practical importance in respect of all schemes of legal or judicial reform. Law has been defined by many men in many different ways, and the diversity is largely due to the fact that a system of law is a complex phenomenon possessing different aspects from different points of view. From the point of view of the lawyer, however, whether he is concerned with practice or with theory, the law presents itself primarily and essentially as a system of rigid rules in accordance with which justice is administered in the tribunals of the State to the exclusion of the unrestricted judicial discretion of the judges and magistrates to whom this function is intrusted. Theoretically the administration of justice is possible without the existence of a system of law at all. Courts of justice might in theory be left to do justice according 1 Solicitor-General for New Zealand. Ixxvi JOHN W. SALMOND to their own good pleasure, determining the right of each individual case according to the facts of that case and according to the untrammeled sense of natural equity. Certain courts of inferior jurisdiction do in fact possess by statute this power of adjudication in accordance with equity and good conscience without reference to rigid rules of law. A similar jurisdiction was in earlier days exercised by courts of equity. Nevertheless the general adoption of such a system of courts of justice which are not also courts of law is open to objections so grave that at all times and in all places it has been found necessary to limit or exclude judicial discretion by elaborate systems of fixed principles of law which courts are bound to follow in the exercise of their judicial functions. These rules have been either imposed upon the courts "ab extra" by the State in the form of statute law, or have been developed by the courts themselves in the form of judicial precedents which exclude for the future that freedom of judicial decision in which they had their origin. It is true that this system of administering justice according to law legal justice instead of natural justice has brought grave evils in its train. It is the source of the technicality and formalism, the complexity and esoteric mystery, which have at all times been made a ground of reproach against judicial administration. Nevertheless the good sense of all communities has at all times recog- nized that in spite of these grave evils the balance of advantage lies beyond question on the side of adminis- tering justice in obedience to a rigid and elaborate system of binding legal rules. Although there is no question, therefore, that in all civilized and advanced corrimunities it is practically necessary that justice should be administered according to law and not according to the sense of equity and good conscience of its judicial administrators, there still INTRODUCTION ( Ixxvii remains the very important and practical question as to how much law is necessary: that is to say, as to the extent to which the exclusion of free judicial discretion by fixed predetermined principles of law is necessary and justifiable. How far should a legal system consist of a comparatively small number of general principles which, because of their generality, are necessarily flexible and leave scope for a large measure of judicial liberty in their administration; and how far, on the other hand, should a legal system seek by the multitude, minuteness, and fixity of its constituent rules to exclude so far as possible the liberty of judges and magistrates to do as they think just in the individual case? There can be little doubt that English law and the systems derived from it have followed the latter of these courses to an extreme. In complexity, in minuteness, and in rigidity, these systems have in many departments of the law gone far beyond the ideal limits. This over- growth of law is indeed scarcely avoidable in any system which grows by the internal secretion of case-law instead of by the external imposition of statute law. Statute law is almost necessarily more general, more free from minute and even irrational distinctions, qualifications, and exceptions, than the law which is developed piece- meal from precedents established by reference to the individual instance. If English law is ever codified, the most striking difference between the law in its new statutory form and the unwritten law of the present day will be an enormous reduction in its bulk and complexity and the wholesale elimination of the minute distinctions and exceptions by which it is now disfigured. The case in favor of an elaborate and rigid legal system is far stronger in respect of substantive law than in respect of procedure. In modern times we have begun to recognize the extent to which, in all matters which Ixxviii JOHN W. SALMOND relate to procedure, judicial discretion may wisely be left free from the trammels of law. Yet we have a long way to travel on this road before an ideal system is within our sight. In earlier days the diseased growth of pro- cedural law was the chief reproach of the English system. The technicality and formalism of the older law of plead- ing and practice have indeed ceased to a large extent to deform and discredit the administration of justice, and will rightly be regarded by the future historians of the law as one of the most remarkable features of the dark ages of legal development. The elimination of legally essential but practically immaterial forms, the substi- tution of merely directory for mandatory rules, the establishment of wide powers of amendment, and other reforms, have largely restored to the courts the power of doing in matters of mere procedure such justice as seems good to them. Yet we are still far from being beyond reproach in this matter. It is difficult, for example, to view the complexities and technicalities of the modern law of evidence as having any rational justi- fication or any place in a reasoned system of judicial administration. Surely if a court of justice is fit to be intrusted with the function of determining issues of fact, it is also fit to be trusted to hear and consider such evidence as in its unrestrained discretion it considers relevant to those issues. A system of rules of law for the admission or exclusion of evidence would surely in a rational system of judicial administration go its way to the same limbo to which the technicalities of the law of pleading have been already well committed. There is no other form of human inquiry in which the inquirer is not at liberty to seek guidance from any source which seems good and sufficient to him. Why then should the inquiries of courts of justice be conducted on any different principle? In many modern INTRODUCTION Ixxix statutes creating new jurisdictions it is expressly pro- vided that evidence may be admitted whether admissible in accordance with the law of evidence in other proceed- ings or not. There seems no reason to believe that this elimination of the law of evidence in favor of free judicial decision has brought any evils in its train, and it may be hoped that the progress of legal reform will eventually make this elimination general. The reasonable precaution against irrelevance and prolixity in trials is the judicial discre- tion of the court in excluding evidence which, in the opinion of the court, in the particular case is needless or has no bearing on the issue, and not the application of fixed predetermined rules of admission or exclusion. That hearsay is not evidence, that is to say has no evidential value, is, notwithstanding all the legal quali- fications of it, notoriously untrue as a proposition of fact. Why then should it receive the authority of a rule of law? Let the court in its discretion exclude hearsay when it is in fact destitute of evidential value or where there is no sufficient reason why primary evidence should not be produced, or where its admission is otherwise unjustifiable or inexpedient; but in the very numerous cases in which such evidence is in fact and in justice unexceptionable, why should it be excluded by a rule of law? In the case of substantive law on the other hand law which determines rights and liabilities themselves and not merely the machinery of their judicial ascer- tainment and enforcement very different considera- tions are applicable. Here the case in favor of the administration of justice in accordance with a complex body of rigid rules of law is well established. Here, if we are wise, we shall have as little "freie Rechtsfindung" as possible. It is true indeed that even in this sphere the' evils which accompany an elaborate and technical legal Ixxx JOHN W. SALMOND system are many and serious, but they are the necessary price which a community pays for release from greater evils. It is true that the administration of justice according to law is notoriously uncertain. Yet the extensive substitution of unrestricted judicial discretion for preestablished rules of law would add to this uncer- tainty rather than diminish it. It is true that the law is not always wise or just ; but in the long run, as represent- ing the formulated wisdom and justice of the community, it will be found wiser and juster than the individuals who administer it. The ancient maxim that it is not permitted to be wiser than the laws is applicable, not merely to those whose business it is to obey them, but also to those who are intrusted with their administration. It is true that the law necessarily lays down general rules which cannot take due account of the special circum- stances of the individual case, whereas a court which is permitted to do justice at its good pleasure can take all these circumstances into consideration and act accord- ingly, observing that equity which, according to the old definition, mitigates the rigor of the law. Yet it is certain that this advantage is bought at too great a price. The same principle which allows a judge to take account of the individual merits of the particular case exposes him at the same time to all the perverting impulses of his emotional nature, to all his prejudices, and to the unconscious bias of his mental constitution. For one case in which, in any reasonable system of law, a court was constrained to do injustice because of necessary conformity to preestablished rules, there would be many in which, unguided by such rules, he would be led astray by the temptations which beset the "arbitrium judicis." A characteristic feature of modern criminal law is the substitution of judicial discretion in the measure of INTRODUCTION Ixxxi punishment (restrained only by a fixed legal maximum) for the earlier device of fixed penalties. I am far from being assured that the change is altogether one for the better. There is much to be said for the establishment of minimum as well as for maximum penalties, in order thereby to withdraw the courts from the influence of a sentimental humanitarianism which in the guise of mercy to the individual too often does grave mischief to the community at large. One of the chief advantages derived from the mainte- nance of a bodyof fixed legal rules which are not subject to the "arbitrium" of its administration is that on this basis rests the prestige and power of the administration of justice. The law is impartial. It has no respect of persons. Just or unjust, wise or foolish, it is the same for all, and for this reason men readily submit to its arbitrament. In the application and enforcement of a fixed and predetermined rule, alike for all and not made for or regarding his own case alone, a man will willingly acquiesce. But to the "ipse dixit" of a court, however just or impartial, men are not so constituted as to afford the same ready obedience and respect. The "arbitrium judicis" depends for its prestige upon the reputation and personality of the court itself. The rule of law, however imperfect, has behind it the sanction of the organized commonwealth. Though the rule of law may work injustice in the individual case, it is nevertheless recog- nized that it was not made for the individual case and that it is alike for all. "Durum sed ita scriptum est" is allowed as a sufficient justification for its imperfect operation in the individual instance. The law-abiding spirit so created in a community is a public advantage that far outweighs the benefits which may accrue in particular cases by allowing to courts the opportunity of substituting what they conceive to be natural justice Ixxxii JOHN W. SALMOND in lieu of justice according to law. An elaborate and technical system of law is doubtless in many respects an evil but it is the only road to freedom from greater evils. "We are in bondage to the law," said Cicero, "in order that we may be free." "Legibus servimus ut liberi esse possimus." The foregoing considerations are the justification for that progressive development and elaboration of the legal system which is the necessary result of the binding operation of judicial precedents. English law and every other system which has its historical origin in English law grows not merely externally by way of legislative imposition, but also internally by the secretion of new rules which are the product of the judicial interpretation of the law. However skillfully drawn, a statue when first enacted is but an imperfect piece of work. It contains ambiguities, omissions, and real or apparent inconsist- encies. But in the process of time it is supplemented by a body, often considerable in extent, of authoritative rules of case-law by which these defects are remedied. In the beginning a statute means what the courts in the exercise of their unrestrained judicial powers decide that it means. In the beginning the meaning of a statute is a question of fact just as is the meaning of any other written document. But in process of time its meaning becomes more and more taken out of the region of fact and becomes more and more determined by authorita- tive rules of interpretation created by the judicial pre- cedents which arise in the course of its administration. It is true that this development of case-law has its evil aspects. It is true that the growing burden of it is such as to give some weight to the suggestion that the law should be that which is established by the legislature only, and that in the administration and interpretation of that law the courts should be free to act as they think INTRODUCTION Ixxxiii fit, without subjection to a vast body of subsidiary law created by the decisions of their predecessors. Neverthe- less the system of authoritative judicial precedents is based on sound considerations of public policy. In the first place it secures the proper administration of justice by imposing upon the courts that restraint which is due to the knowledge that their determination of the individual case is at the same time the establish- ment of a fixed rule for all other cases of the same kind. The additional sense of responsibility so given to the judicature by the knowledge that they are making law for the future, as well as deciding an individual case, has the same effect in eliminating the influence of illegitimate considerations applicable to the particular instance as is exercised by the existence of a system of preestablished law. In the second place the system of precedents prevents the same question from remaining indefinitely open as the subject of repeated litigation and judicial determina- tion. As early as possible it brings every unsettled question within the scope of a fixed legal principle and takes it out of the sphere of free judicial determination. A judge is bound by the decisions of his predecessors, not because they were necessarily or even presumably wiser than he is not because their decisions are necessarily or presumably more correct than those at which he would himself arrive but because it is in the public interest that questions once decided should remain decided. Therefore it is, that the law grows steadily in bulk and elaboration by a process of internal secretion, whereby the sphere of the "arbitrium judicis" grows less and less and the sphere of authoritative legal principle grows greater. The evils of this system of legal development are doubtless great, but they can be largely avoided by the Ixxxiv JOHN W. SALMOND recognition of two practical principles. The first of these is that no decision is worthy of recognition as a precedent unless it contains within itself some general principle of law as opposed to a mere determination of the individual instance. The second is that, in order to render the system of case-law tolerable, the law so devel- oped should from time to time be formulated as statute law so that its principles may receive authoritative expression "in abstracto" freed from the complexities of the individual decisions from which they proceed. No better system of law can be devised than a system of statute law progressively supplemented by the case-law which arises from its interpretation, and superseded from time to time by a fresh formulation of statute law which incorporates within itself the case-law theretofore developed. Closely connected with the foregoing question of free judicial decision is the problem of the sound judicial interpretation of the written law a problem to which a considerable part of the present volume is devoted, and which by reason both of its practical importance and of its scientific interest deserves more consideration than it has received in English legal literature. The true doctrine of judicial interpretation is a reason- able compromise between two unreasonable extremes, each of which is rendered possible by the inherent imper- fections of human speech and the laxity of legislative construction and expression. The one extreme is that of the strictest literal interpretation the unqualified and rigid acceptance of the maxim, "Ita scriptum est." No language is so perfect, and no legislation so skillful, that this mode of interpretation will not constantly lead to absurdities and defeat the true purpose of the legislature. The opposite extreme is the license of disregarding the letter of the law in order to seek elsewhere a rule that is INTRODUCTION Ixxxv deemed more consonant with justice or the legislature's intention. The ambiguities and other defects of language, even when used with the careful precision of statute law, are such that no legislation will bind a court which claims and exercises this license in its methods of interpretation. If the w T ords of the law can be given an unnatural mean- ing, if words can be read into a statute which are not expressed therein, or disregarded as inoperative although they appear therein, if the courts are at liberty to adopt as law that which the legislature is presumed to have meant rather than that which it has actually said, there are few statutes which would be proof against the dis- solving influences of this form of interpretation; and the courts instead of being bound by fixed rules of law made for them would in effect be at liberty to legislate for themselves and to substitute under the guise of interpre- tation the" arbitrium judicis" for the "lexscripta." Judi- cial and forensic astuteness could on this system untie all legal bonds imposed by the legislature, and substi- tute for the administration of justice according to law its administration according to the good pleasure of the courts. The true and authentic system of interpretation is a compromise between these two extremes. The fundamen- tal maxim of sound interpretation is "ita scriptum est," and it is not the business of the courts to be wiser than the laws and to mold them into conformity with judicial views of what is just or unjust. The letter of the law is the law itself. Nevertheless there are cases in which the "litera legis" is logically defective and cannot be so received as the authoritative and conclusive expression of the will of the legislature. It may be ambiguous, express- ing more than one alternative meaning. It may be incon- sistent, expressing two concurrent and conflicting mean- ings. It may be incomplete, providing for part only of Ixxxvi JOHN W. SALMOND a complex subject-matter and leaving the residue unpro- vided for. In these cases and in these only is there any lawful scope for judicial interpretation which departs from the letter of the law. In these cases, as the authori- tative formulation of the law has failed to express a single harmonious and complete idea, it may be lawfully supplemented by considerations drawn from the real or presumed purpose of the legislature and from the require- ments of natural justice. In all other cases the public interest is best served in the long run by the loyal recognition on the part of the courts of the fact that their business is not to make the law or to reform it, but to obey and administer it as it stands, leaving with the legislature the responsibility for its imperfections. LIST OF ABBREVIATIONS ABR, Archiv fur Burgerliches Recht. ARWP, Archiv fur Rechts- und \Yirtschaftsphilosophie. AZP, Archiv fur Zivilistische Praxis. BGB, Burgerliches Gesetzbuch (German Civil Code). DJZ, Deutsche Juristenzeitung. DRZ, Deutsche Richterzeitung. GU, Gerichtsurteil (Court Decision, in Austria). HGB, Handelsgesetzbuch (Commercial Code). JW, Juristisches Wochenblatt. OBGB, Oesterreichisches Allgemeines Burgerliches Gesetzbuch (Austrian Civil Code). OSG, Oesterreichisches Strafgesetzbuch (Austrian Penal Code). RG, Reichsgericht (Imperial Supreme Court, Germany). RGStr., Entscheidungen des Reichsgerichts in Strafsachen. RGZ, Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the Imperial Court in Civil Cases). VGH, Verwaltungs-Gerichtshof (Administrative Court). ZSRG, Zeitschrift der Savignystiftung fur Rechtsgeschichte. ZRW, Zentralblatt fiir Rechtswissenschaft. ZVR, Zeitschrift fur Vergleichende Rechtswissenschaft. SCIENCE OF LEGAL METHOD PART I THE PROBLEM OF THE JUDGE CHAPTER I JUDICIAL FREEDOM OF DECISION: ITS NECESSITY AND METHOD BY FRANCOIS GENY* I. ITS BASIS 1. NEED FOR AND NATURE OF FREE LEGAL DECI- SION. 2. GENERAL SCOPE OF FREE DECISION. 3. OB- JECTIVE FACTORS IN SCIENTIFIC INVESTIGATION; PUBLIC OPINION. 4. SYSTEMATIC LOGIC AND THE TECHNICAL SIDE OF OUR SCIENCE; CONCEPTS AND ABSTRACT NOTIONS. 5. THE "NATURE OF THINGS"; THE IDEA OF LAW AS A MEANS TO AN END. II. ITS PRACTICAL APPLICATION 6. THE METHOD OF FREE DECISION. 7. LIBERAL USE OF THIS METHOD. 8. THE AUTONOMY OF INDI- VIDUAL WILL EXPLAINED. 9. EXTENT OF THE PRIN- CIPLE OF THE AUTONOMY OF THE WILL. 10. SAME 1 1 [Professor of Civil Law at the University of Nancy. The selections translated are taken from sections 155-159, 169-176 of his "Methode d'interpretation et sources en droit prive positif," Paris, 1899. He is also author of "Science et technique en droit prive positif: nouvelle con- tribution a la critique de la methode juridique," vol. i, Paris 1914; vol. ii, Paris 1915. The translation is by Ernest Bruncken, of Washington, D. C.] 2 GENY: FREEDOM OF DECISION [CH.I SUBJECT CONTINUED. 11. THE PRINCIPLE OF THE EQUILIBRIUM OF INTERESTS. 12. SAME SUBJECT CON- TINUED. 13. THE PRINCIPLE OF SUPERIOR INTEREST OF THE COMMUNITY. 14. OTHER APPLICATIONS OF THE METHOD OF FREE DECISION. I. ITS BASIS 1. Need for, and Nature of, Free Legal Decision. The formal sources of positive private law (which I have tried to explain [in the preceding chapter] 13 according to their proper scope and their legitimate use), certainly furnish the best guide, in their peculiar field, for the administration of the law. We cannot conceal from ourselves, however, that even the subtlest and most penetrating interpretation of the positive manifesta- tions of the law will not by itself satisfy all the needs of legal life. Especially speaking now only of the source of law which at the present day is of all sources the most perfect and fertile, the written law it is clear that we shall find, if we consider it as we ought, as an act of human intelligence and will, and therefore limited in its outlook and even more limited in its actual effect, that we cannot derive from it the full solution of all the infinite number of questions that clamor for answers in the complexities of social life, no matter how deeply we may dig into the meaning of the statutes, and how ingeniously we may construe them. There comes a point, accordingly, where the Court can no longer rest secure on a formal rule but must trust to his own skill in finding the proper decision which he is not permitted to refuse. 2 Moreover, as long as a lawyer merely searches the statutes for rules that do not depend on his own judgment, he plays no more than u [Not translated.] ' See section 4, French Civil Code. 1] NATURE OF FREE DECISION 3 a receptive or mechanical part. His own skill enters upon the scene when it becomes a matter of discovering and using the underlying principles of every mere statu- tory rule, which alone make the rule valuable and preg- nant. Consequently, if we take the organized body of the positive law as a whole, we may say that the central and normal part to be played by the judge consists in a personal mental activity. The manner in which this activity should be employed it is important to under- stand. In the old days, when statutes, and especially statutes relating to private law, were few, fragmentary, and very incomplete, and when even customary law appeared still shifting, loosely fixed, and uncertain, the decision of the judge had a vast field before it, and almost entire freedom of exercising itself. It was immaterial, in this respect, whether the judgment was supposed to be a sort of revelation by the Deity, or based on the less archaic conception that it was an authorized expression of the public conscience. According as customs have become more firmly established, and especially as statutes have multiplied and extended their application over constantly growing portions of private law, the part played by the personal inspiration of the judge has become narrower and at the same time more accurately defined. It has never dis- appeared entirely, for the reason that the formal sources have always been incapable, taken by themselves, of covering the whole field of the law. Whenever rules are made by some authority other than the courts, the dis- cretionary functions of the latter invariably become more accentuated although within a more circumscribed sphere. But, at the same time, discretion becomes less arbitrary and subjective. Discretion always remains because it is inherent in the very nature of the judicial function; 4 GENY: FREEDOM OF DECISION [Cn.I it has a broader sweep where it can be exercised outside of all formal legal sources, and becomes less complete where it is called upon merely to give effect to such sources of law. 2. General Scope of Free Decision. Even to-day there exists undoubtedly this double function of the judge: he is to contribute to the creation of law, and to develop further such law as has already been formulated. The legislator himself is not even in a position to restrain his discretion arbitrarily. Limitations may be found, however, in direct and imperative provisions of the written law, or in custom. Within the bounds left to the judge by these positive rules he must exercise his personal activity. The thing for us to consider in this place is the nature of this activity as regards the subject- matters to which it extends, the precise manner in which it works, and the foundations on which it is based. Whenever it is the business of a judge to discover what the law is in fields in which it has not yet been formu- lated, his functions have an appearance analogous to that of the legislator himself. Leaving aside for the present the fact that the Court intervenes only when a particular state of facts has actually arisen to which the law must be applied by no means a negligible dis- tinction, but one which just now is for us of secondary importance the considerations that must guide the judge in accordance with the end to be attained are exactly the same as those which would influence the legislator. For the one as well as the other aims at promoting by an appropriate rule the ends of justice and social utility. I should not hesitate, when the formal sources are silent or insufficient, to prescribe as the general guide of the judge the following outline: he should formulate his decision in accordance with the same considerations which the legislator would have in mind 2] SCOPE OF FREE DECISION 5 if he were to prescribe rules relating to the question at issue. Yet there is one important difference between the function of the judge and that of the legislator. The latter is surrounded by no barriers preventing him from considering the circumstances in every one of its aspects, because he is called upon to establish an entirely abstract rule. The Court, on the other hand, renders his decision on a particular and actual state of facts, so that his problem becomes very concrete. According to the spirit of our judicial system, and in order to avoid becoming arbitrary, he must rid himself as far as possible of all personal influences, as well as of those which arise from the particular circumstances of the case before him, so as to base his legal decision on nothing but the objective elements constituting the case. Here is the reason why the name I have given to this function of the judge, free decision on the basis of scientific investigation, seems to me justified. It is free, because no positive outward authority compels him to decide as he does; it is scientific, because it finds its solid founda- tions in nothing but the objective elements which legal science must reveal to him. What I have said of the courts, which are the official and authoritative administrators of the positive law, applies necessarily also not only to the practising attor- ney but to the theoretical or critical scholar interpreting the law. It is the part of the latter simply to do the preliminary work so that the judiciary may put the results into practical effect. The work of the judge de- termines what work the theoretical scholar is to do. The latter escapes the difficulty caused by the direct effects of the troublesome or suspicious influence of concrete cases, but the objective point of all his efforts is at bottom the adaptation of the latent rules of the law to all the data of social life. 6 GENY: FREEDOM OF DECISION [Cn. I Thus the method of legal science in this field of free research which we now have in mind must have for its goal the discovery, whenever the formal sources fail, of the objective factors to which all problems of positive law must look for their solution. 3. Objective Factors in Scientific Investigation; Public Opinion, From the point we have now reached, so wide a field and such far-off horizons stretch out before us that we cannot possibly, in this cursory sketch, deal with all the detail ; so I find myself constrained to limit myself to outlining a few characteristics of the sub- ject. To study its objective realities in a satisfactory fashion we should have to descend to the very roots of the constitution of humanity and discover the ultimate foundations of the ends for which it exists. Then we should have to return to the phenomena which form the essential structure and nourish the continuous life cur- rent of society. No doubt we should not blind ourselves to the fact that an examination of all these great problems which form the natural field for a broad philosophy of the law is for. the science of positive law also of capital importance; and I propose to defend myself strenuously against any charge of yielding to the naturalistic or agnostic tenden- cies that are now so fashionable, as I know very well. Personally, however, I am of the opinion that these tendencies are irreconcilable with the true scientific spirit, and fatal to its effective application to actual practice. Yet it will have to suffice, provisionally at least (and with the reservation that I may come back to this whole side of my subject in a larger manner and in another study), for our present purposes to accept the ideas of common sense and common opinion regarding the nature of our social organization and to see what 3] OBJECTIVE FACTORS 7 help we can get for our development of private law from a careful investigation of the conditions of human life and a judicious employment of our own humaji nature. The question is, therefore: How can the administra- tion of positive law, when the Court is left to itself without help from statute or custom, deal with objective data so as to satisfy the requirements of life without incurring the reproach of being arbitrary, and how should it proceed? Before everything else I should get rid of an idea which under the social and economic conditions of our epoch affords many temptations. This idea is the underlying conception of the theory upheld by the Historical School in the various more or less definite forms it has assumed in the minds of. a number of eminent thinkers. It is difficult to escape its influence altogether, and yet it seems to me as if it ought to be entirely banished from all good legal method. That is the idea that public opinion, representing the general feeling, more or less conscious, of the people interested, can legitimately sug- gest to the Court the solutions of juridical problems which he is seeking. Aside from the almost insurmount- able difficulty of determining in a convincing manner what the state of public opinion may be regarding any given legal question, I believe that the common judgment, as long as it has not been transformed into an actual custom, ought not to be held to have authority to impose itself on the courts for the solution of legal problems. Even in the legislative sphere it seems to me very doubt- ful whether those intrusted with the duty of establishing general legal rules ought to be guided principally by public opinion, which is always unstable and very little sure of itself. In any case, however, where we are dealing with the administration of law supposed to be already in 8 GENY: FREEDOM OF DECISION [CH.I existence, I do not see what serious reason could be given for basing decisions on the recognized influence of general feeling regarding the matter. I do not intend to say by any means that the Court should absolutely refuse to consider public opinion. In so far as it is itself a social fact which must be taken into account, it cannot fail to demand his attention. What I mean to insist upon is that no matter how firmly settled public opinion may seem to be, it must not be allowed to deter- mine the judgment of the Court, nor to serve him as a test showing what the law is, for the simple reason that it cannot pretend to be proof of the truth regarding exist- ing conditions, and the only thing to discover and apply practically is that truth. Thus the Court will have to rely upon himself and find no guide except the nature of things themselves. That nature of things, fertilized and developed by systematic logic, will be the subject-matter of his investigations. 4. Systematic Logic and the Technical Side of Our Science; Concepts and Abstract Notions. Now let us first take a look at the last-named factor in our method. It is essential, for a proper understanding of the sub- ject, to keep apart logic in the proper sense and legal technic. Logic in its proper sense has a legitimate and necessary part to play in the administration of the law whenever there is a question of discovering the true content of some expression of will, be it that of a legal command or of the intention of an individual to which the positive law gives effect. The same thing is true whenever it becomes necessary to reason out the practical consequences and scope of a legal principle derived from the nature of things and objective realities. 4] SYSTEMATIC LOGIC 9 i The function of legal technic is something quite dif- ferent. Lawyers look at the complex and moving reali- ties of social life, which it is their duty to reduce to order, and upon the varying interests involved, from a very special angle, and submit these realities to artificial processes which transform, and sometimes deform, their effective nature. Thus certain economic operations, which naturally would be variable and uncertain in their character, are cast into a firm and unchanging mold, or, as one might say, change their shape by passing through the crucible of the law. For instance, the finan- cial operation of exchange, which in a way arises simply from the acts of the parties in interest, becomes clothed with a definite and almost rigid legal character in the form of a bill of exchange, with the conditions and effects imposed on it by positive law. In a more general way it may be said that legal technic fixes the characteristic features of those facts from which legal consequences may flow, by defining these consequences itself. Thereby it establishes, perhaps not exactly a sort of hierarchy, but at least a general scheme within which the actual facts of social life must find a place, and to which they must to some extent accommodate themselves. In so far as by these processes legal technic helps to develop and makes easier the relations of human life, or, to follow a pregnant expression used by Jhering, procures the formal conditions which make the law effective, it has a very legitimate part to play. Under existing con- ditions of society the creation of the means by which this technic works is the exclusive business of the legis- lator, or in exceptional cases of custom ; but it is the duty of the courts to strengthen its functions by ingeniously harmonizing the various parts of the system of legal technic and make it function more smoothly by con- stantly adapting means to the end. 10 GENY: FREEDOM OF DECISION [CH.I The function of legal technic is not limited, however, to making sure that the ultimate object of all law is attained by its processes of synthesis and simplification. The reason for this arises from the very nature of legal technic; it is the effect of the artificial character inherent in it, and of the almost inappreciable line which separates generalizations of observed facts from imagined abstractions. There is still another task before it, and in this regard the part of legal administration greatly exceeds that of legislation. By means of legal technic we may isolate ideas from realities, attempt to get abstract general notions of the component elements of the law and mold them into abstract concepts. From these again we may deduce abstract "constructions" to which the fact will have to be adapted, sometimes by main force. In another place I have spoken of the dangers which arise from these technical operations; but my consciousness of such dangers has not led me to be in favor of the complete exclusion of legal concepts and the "constructions" deduced from them. Not only do I not hesitate to say that the courts are bound to accept the formal concepts which have been positively embodied in the statutes, and to deduce from them all the conse- quences to which they lead, just as they would do from every other expression of the intention of the law. I go further and ascribe to the function of administering the law the full power of creating on its own account similar concepts. As I see it, the greatest usefulness of abstract concepts is found not in helping to build up a systematic theory of the law, but in this, that they may become a sure guide of the judge in applying the law to the facts, and that at the same time they have the power, if skillfully handled, of increasing the scope and fecund- ity of legal principles. However, while I do insist on the legitimacy of these technical operations, I also 4] SYSTEMATIC LOGIC 11 affirm that in employing them the Court should always be guided by two important considerations. On the one hand, it would absolutely be an error to believe that every legal rule must necessarily revolve around some ideal concept which gives it life and determines its scope. Quite to the contrary, I maintain as incontrovertible a priori that the strongest and most certain precepts of the law are those which spring directly from the nature of things without the intervention of some abstract concept, which in all cases cannot but deviate in some points from reality. On the other hand, while sometimes it may appear useful to have recourse to concepts and abstract "constructions" by the employment of these technical operations, the judge must never forget that these take him outside of the realm of those objective realities which alone should guide his judgment. He should guard against believing himself bound by these concepts (except where the statutes themselves adopt them) and never take them for more than scientific hypotheses, which are no doubt capable of helping him in conducting his investigations but are never to be taken as established realities. Therefore the needs of actual life must never be sacrificed to mere concepts. These observations seem to mark pretty well the boun- daries one should not exceed in logical systematization. It appears pretty clearly from them that the main sup- port of the administration of the law must be sought in something else if its proper functioning is to be secured. Instead of relying on abstract concepts of the mind, which are in their very origin inconstant and uncertain, the Court needs to avail himself of the firm principles which only a careful investigation of the nature of things themselves can furnish. 5. The Nature of Things; the Idea of Law as Means to an End. Thus we have at last come to inquire into 12 GENY: FREEDOM OF DECISION [Cn.I the principal task of free decision on the basis of scien- tific research, which is the examination of the nature of things themselves. That is an idea which may lack precision but has been found very pregnant. It was introduced into the investigations of jurists by the German, Runde, about 1791, and has since that time been much employed by German legal science as a substitute for the formal sources of positive law. On the other hand its intrinsic merits have more than once been disputed, and Windscheid used to stigmatize it as a dis- reputable expression. Perhaps the discredit with which this notion in my opinion an indispensable one in any system of posi- tive law is threatened may be avoided if we define its nature a little more than has heretofore been done and show what good results it may produce. The meaning which Runde attached to this expression and which has been generally accepted, according to which the nature of things may be considered as one of the sources ("lato sensu") of positive law, rests upon the following assumption: the relations of social life, or putting it more generally, the facts underlying every juridical organism, carry within themselves the conditions under which they may be in equilibrium and indicate themselves, if one may say so, the rules by which they ought to be governed. If that is so, nothing would appear to be easier than to examine all human relations in detail in order to distinguish those among them which require legal recognition, and then find what law should govern them in all cases where there are no formal sources. The only trouble with this proposition is that in trying to apply this method one will soon find that the assumption was accepted a little hastily. It fails in this respect at least, that even the most minute study of the relations of life, although the weighing of the interests 5] LAW AS A MEANS 13 involved may be facilitated thereby, is by itself powerless to indicate clearly and accurately its rule of law. In order to make the method practicable one needs more certain standards. The law that harmonizes the facts must be sought outside of the facts themselves. Now let us return to the main point of our discussion. The question is, how can we create by a scientific effort a sort of common law, general in its nature and subsidiary in its function, which may supplement the formal sources when they fail, and give a general direction to the whole current of legal life? Will the law so found be an im- mutable type, or will it vary, at least in some of its parts, in accordance with the circumstances of the times? Will it be a law of universal application or will it not exhibit certain national differences? These, however, are rather secondary questions, on the whole, and they cannot be solved a priori, for the answers will depend on the nature of the elements of which this necessary common law is com- posed. The important thing above all, however, is to know how this positive common law may be constituted. To solve this question, a seductive idea has been proposed, the idea of scope and purpose, or the law as means to an end. 3 Starting from the truth suggested by experience and ordinary reasoning, that every act of will depends on a purpose to be achieved, and observing further that every system of law has for its subject- matter principally acts of human will, one can easily come to the conclusion that such a system ought to be entirely dominated by practical ends. Hence the maxim formu- lated by Jhering: the end to be sought creates the entire body of law. According to this all that would be neces- sary to find the rule that should regulate any given relation of society would be to find what end is to be 3 Jhering, "Der Zweck im Recht" [the first volume of \\-hich is trans- lated in this series under the title of "Law as a Means to an End"]. 14 GENY: FREEDOM OF DECISION [Cn.I accomplished. However, it is easy to see that such a conception presupposes in practice that the ends which are to be attained by each legal rule are already known. This proposition, again, could not possibly be put into practice without a very clear and definite consciousness of the ultimate ends toward which human life is tending. It appears, therefore, that this maxim may be a very valuable instrument of investigation but only puts the ultimate solution of the problem further off. How then shall we find the ultimate standard by which to measure the juridical value of social facts? Without entering upon the transcendental regions of our moral nature, I believe that we shall easily come to an agree- ment on the proposition that every body of laws should tend toward realizing, in the life of humanity, on the one hand an ideal of justice, on the other an ideal of utility, meaning by the latter expression that which by common opinion is considered as promoting the welfare of the greater number. The two great guide-posts of our inves- tigation should be, therefore, justice and general utility. To be sure, that is still far from giving us complete light on the subject, because the two ideas so represented are of themselves nothing but empty forms which must be given a content before we can draw out of them all we need for our present purposes. Precisely at this point is the place for the idea of the "nature of things" such as, according to my view, it should be understood. It is not enough merely to con- sider and analyze in detail all the facts of the life of our society, to observe their mutual relations, to discern how they reciprocally react upon each other. We must also boldly rely upon our moral consciousness and our reason- ing powers, and by the use of these faculties trace the laws which govern these phenomena. Thus we shall employ all our resources for the construction of a truly 5] LAW AS A MEANS 15 scientific system of the kind of common law of which we are in search. From this point of view the field of our investigations becomes definite and complete. On the one side, we address ourselves to reason and conscience in order to discover within our own breasts the foundations of jus- tice; on the other 'side, we must study social phenomena in order to grasp the laws which harmonize them and the principles which will arrange them in order. Of these two tasks which we must perform, the last-named finds a firm basis in what may be called the nature of positive things, which in their totality form what one might call the atmosphere of social life. The other rests on a more recondite foundation, it cannot be attacked by observation and the experience of the senses, but never- theless forms one of the necessary conditions of the prac- tical working of the law. Attempts to resolve one of these factors into the other have all been in vain. Not- withstanding various prejudices that are still alive, both have continued to exert their influence on the life of the law. Well convinced as I am of their necessity I have no hesitancy in giving to each its proper place and function. II. PRACTICAL APPLICATION OF THE PRINCIPLE OF FREEDOM OF JUDICIAL DECISION 6. The Method of Free Decision. The reader will perhaps wish to be told in a somewhat more direct fashion how the method of free legal decision, which is founded on such diverse scientific grounds, will work out in such a way as to preserve both its own peculiar characteris- tics and the necessary degree of certainty. He will wish to see what results may be expected by being shown some facts learned from actual experience. 16 GENY: FREEDOM OF DECISION [CH.I In regard to the first of these points, it must be said that above all things every jurist must become as clear as possible in his own mind on the problem of what con- stitutes his peculiar function in the life of society. When he has become fully conscious of the nature of his task, he will find in that very consciousness the best guide to conduct him straight towards the clearly con- ceived goal. Now it cannot be repeated too often that legal science is essentially a science of action, having no possible purpose except that of finding the necessary rules for the government of certain human relations by external social sanctions. It is based on facts of social life which it aims to order and arrange in such a way that the consequences flowing from them are those which are socially desirable. Consequently, legal science must first of all try to analyze the human facts into their ultimate elements. As it cannot master these elements without arranging them in certain general series and reducing them to cer- tain types, analysis must necessarily be supplemented by classification, which must already show more or less clearly some definite goal. The conception of this goal will become still clearer and bring the final result into closer view, when the rule has been established which ought to govern the relations so analyzed and classified. To find this rule for the government of the facts is the peculiar work of legal science. Although the facts themselves will in part suggest the rule, yet its real origin must be sought in a superior order of ideas which can be discovered only by an effort of reasoning. I am very far from depreciating the importance of simple observation of social facts; I do not even hesitate to give to it the first place among the indispensable elements of juridical method, without which it would be impossible even to put the problems correctly. Yet this 6] METHOD OF FREE DECISION 17 alone could not, as has sometimes been contended, bring us to the desired goal of our science, not even if we join to it rational classification. We need also a process of reasoning which starts from an intuition supplemented by the feeling for what is just, and arrives at exact con- clusions by a series of deductions under the constant guidance and control of practical common sense. In administering the law one is obliged first of all to dis- cover some general and abstract rule to be applied to the special combinations of concrete facts which actual life produces. In all cases the judge should therefore start from what would be the normal rule. That means he should first propose to himself the most general rule applicable to the state of facts before him as a type; he should contemplate both the conditions giving rise to the rule and the results flowing from it without regard for any unusual features or anticipation of any but the probable consequences, except in so far as these un- usual features or consequences arise from the particular nature of the facts themselves. These will have to be considered in selecting the rule itself. Moreover, we must not forget that the free decision of the judge only extends to the cases where the formal sources, be they statutes or custom, fail him. The exer- cise of his freedom is broad or narrow, and the results of his reasoning are more or less certain, according as he is able to base it on analogy, or on elements in the facts which suggest an established view of society, or whether in the absence of all positive support he is left altogether to his own judgment. Even within the limited sphere so described, it does not seem to me that free scientific legal decision can create legal rules with the same latitude as that belong- ing to statute or custom. Without stopping to indicate all the limitations surrounding its creative capacity, 18 GENY: FREEDOM OF DECISION [Cn.I it will suffice for me to point out two lines of thought which, among a good many others, seem to justify my assertion. On the one hand, some relations are governed by general principles depending, sometimes only latently, on our formal legal arrangement in so complete and exclusive a manner that there remains no opening for free legal decision without going outside of its proper functions and exceeding its province within the general conditions of social life as they actually exist. Thus it would seem to me that a court could not impose in this manner a legal incapacity (over and beyond the recognition of a natural capacity already existing) or an artificial restriction on the liberty of contract; nor could it thus create a privilege in contravention of the principle of equality before the law. Nor would it be possible to make by free legal decision, according to the methods of legal science, detailed rules such as are required for the exercise of certain rights, for instance the regulation of the manner of proving certain facts, or what is to be regarded as legal publication or notice, the forms of legal transactions, prescription, limitations, forfeitures, and many similar things. Speaking broadly, everything which constitutes the outward, and if one may say so, moldable shell of the law, is outside of the realm of free decision and must be regulated exclusively by statute or custom. 7. The Liberal Use of This Method. In order to shed light on the practical working of this method and to show its results, this would be the place for its application to a number of selected, concrete cases from which its actual working could be learned. It is not possible, however, in so general a study of so vast a subject as we are making, to furnish, at this point, illustrations of the argument I have offered above. For such illustrations would not demonstrate the truth of our proposition sufficiently, 7] KINDS OF LEGAL RULES 19 unless the facts were analyzed most minutely'to the last details. I shall be obliged, therefore, to confine myself for the present, by the aid of what others have already done and adding a few personal observations to what has already become an acknowledged part of legal science, to calling attention to certain important theories. The method of free decision on the basis of legal science, such as I have briefly explained, may be presumed, a priori, to be capable of suggesting probable solutions regarding the problem of supplementing the written law which by itself does not suffice for the needs of daily life. Moreover, I do not claim any intention of deciding the whole matter in a manner sufficient for a systematic treatise. I merely wish to see, if possible, a little progress made, without taking any sides regarding the ultimate solution of problems which would require investigations which I cannot undertake.- In order to limit my task and at the same time make it more definite, I shall take all the following observa- tions (which will necessarily be incomplete and more or less cursory) from a field which one may describe as lying in the very center and constituting the most typical portion of private law, the rules relating to transactions between living persons, affecting estates of various kinds. This whole vast subject, and for that matter all other topics in private law, may, as it seems to me, be treated from the point of view of three different orders of ideas, to wit: Sometimes the regulation of inheritable interests eman- ates from the free and conscious wills of persons who are capable of binding themselves by contracts. The positive law has nothing to do with it except by recognizing the evidence of such acts of will as evidence of legal transactions. In such cases we have nothing to 20 GENY: FREEDOM OF DECISION [Cn.I do except to determine on what terms and to what extent these persons have bound themselves; after that, we must find out what the subject-matter amounts to; and possibly we must supplement the acts of parties, by applying legal presumptions or by interpretation of the terms. At other times it will happen that the will of the parties cannot become effective because it is repugnant to the requirements of social order. In such cases the law must step in to place limitations on the will of individuals, or to frustrate it altogether. In such cases an overruling and irresistible power substitutes its author- ity for that of a voluntary arrangement which it pro- hibits. The positive law itself makes here those rules which it opposes to the divergent wills of individuals so as to govern or restrain them. Finally, there are cases where there is not, or even cannot possibly be, any action of conscious .wills. In- stead there are facts or circumstances regarding which the direct influence of free human action cannot be con- ceived, or at least is not exercised. As a consequence, it becomes the function of the law itself to regulate those interests which in their nature are independent of the wills of individuals. To these three orders of ideas correspond three kinds of legal rules, which are fairly distinct from each other: one kind merely guides or supplements individual acts of will; the second embodies legal commands or prohi- bitions; the third constitutes simply regulations of an external sort. As our social organization is actually constituted, we shall find that each of these three forms of legal rule is governed by a general and essential principle in harmony with the object which each class of rules has in view. Each set of rules, in fact, is the outgrowth of its 7] KINDS OF LEGAL RULES 21 principle. I think one may reduce these three principles to a simple formula in accordance with our most usual terminology in this manner: 1. The principle of auto- nomous will. 2. The principle of public order or superior interest. 3. The principle of equilibrium of private interests. To be sure, these principles, which in practice will often combine and interlace with each other, are found to animate our whole system of law, and can be inferred also from its formal sources, especially the codes, in so far as these contain formal rules relating to each of the spheres indicated above. However, here as everywhere, the formal sources are not sufficient for the purposes of the administration of the law in its entirety. Where they are mute or incomplete, free scientific investigation must supplement them and find the rule which governs such relations in accordance with the method I have proposed above. Now it seems to me that a few brief considerations will make it easily intelligible how the application of this method will help the law to make real and truly scientific progress. 8. The Autonomy of Individual Will Explained. In the domain of individual activity, seeking its own ends, the modern law performs its proper functions best by allowing full independence so long as such activi- ties do not come into conflict with superior interests. This principle of the autonomy of the individual will developed gradually and unnoticed from the time when the ancient social forms were disappearing. It was, in our country and in civil relations at least, em- phasized by the decay of primitive formalism, beginning about the thirteenth century. It continued to develop without interruption, but is seen at the present day to be only the expression of the necessary condition of our whole social organization. One may say that it is 22 GENY: FREEDOM OF DECISION [Cn.I contained, by implication, in certain provisions of our written public law; in its broadest form, perhaps, in section 4 of the Declaration of Rights of 1789, which reads: "Liberty consists in the right of doing anything which does not injure another." At any rate, the authors of the Civil Code have recognized it in the most concrete manner by enacting it into law as the freedom of private contract, 4 or perhaps one may say that they have done so in a still broader fashion by establishing the freedom of legal transactions. All this may appear, in our day, as quite beyond dis- pute. It may be different, however, when it comes to putting this principle into effect to its full extent, and to developing its essence until it penetrates to the very heart of our daily life, or even when it is merely a ques- tion of expressing the applications of the principle with that degree of certainty which practical affairs demand. Is it always true that in such cases we interpret the law with a sufficiently deep and subtle understanding of the social and psychological elements on which the formula of the autonomy of the will must be based and from which its application takes its life? May one not imagine that there may be new and beneficial applications of the principle discovered by a more unhampered study of these elements? Take the notable case of a legal transaction validly performed and unquestionably recognized by the law, let us say a contract if you will. While we emphasize, in principle, the power of individual wills which con- stitutes it, yet are we not often harking back to and docilely accepting the consequences of the Roman cate- gories which, as we must admit, still dominate on the whole our written law in regard to these subjects? Although these categories may quite legitimately continue See sections 537, par. 1; 1134; 1156 seq., Civil Code. 8] AUTONOMY OF WILL 23 to be used as throwing light on the real intentions of the parties, we ought not to forget that in our day the statutory provisions based on these categories are to be taken merely as supplementing the actual intentions of the parties. They are never mandatory, but on the contrary may be modified where the actual facts suggest the propriety of such modification. We may even be justified in overcoming them by presumptions incon- sistent with them, whenever the circumstances of a case show that this would be proper. At any rate, we may and should establish new rules to supply what is omitted in the statutes and the customary law, in order to put into full effect the principle of the autonomy of the will of the parties. Furthermore, we must remember that the traditional categories do not comprise everything; that it was quite possible for the parties to agree upon something "sui generis," provided only that higher rights, and especially the vested rights of third parties, are not infringed thereby. In this way it has been possible, although the Code says nothing about it, to allow in our modern French law the validity of a contract for substitution of debtors with the consent of the two parties concerned, in such manner that the first debtor may pass the debt on to the second for payment, without the previous consent of the creditor, although of course the latter cannot be bound thereby. Similarly, the doctrine will no doubt find favor that the mere will of the parties may establish novel kinds of rights "in rem," provided only that they do not offend against the fundamental principles of our social order. In the same way it will be easily possible to add to the forms of property come down to us from the Romans, new ones based simply on the free agreement of the parties, es- pecially new forms of ownership in common adapted to our economic needs, new forms of trust described in the 24 GENY: FREEDOM OF DECISION [CH. I deed of trust itself ; there may be also new forms of ease- ments besides the servitudes expressly recognized by the law, and other ways of establishing a divided ownership, whereby the utilization of property may be diversified and its value increased. All that may be possible simply by further developing the principle of autonomous wills, provided always that the rights of third parties are not affected and that the interests of the commonwealth are protected. I do not fail to recognize that frequently these general reservations will require considerable re- strictions, and that sometimes the method of free decision will not suffice to formulate these restrictions independ- ently of legislation. That method, however, will at least be capable of preparing the way for the intervention of other sources of positive law, such as statutes and custom, which may complete the body of rules already outlined by the .use of the free decision method. I f anybody should hesitate before the practical difficulties in the way of applying that method as here suggested, he would not, at least, decline to interpret the contracts which are cur- rently made in the course of business without constantly referring them to some one of the legally recognized types, and would prefer to uphold them directly in accordance with the principle of the autonomy of the will. Now, the will of the parties, when it finds no typical formulas which it can use, will proceed in accordance with the moral, psychological, economic, briefly, the social circumstances under which it tries to accomplish its aims. Any doubt regarding the intention of the parties can be solved only by presumptions based upon an ex- amination of these circumstances. Where there is no presumption regarding the intention of the parties in the strict legal sense, it will be incumbent upon the court to base its conclusion on a consideration of all the interests to be considered. A balance between these interests 8] AUTONOMY OF WILL 25 would establish a probability that such was the real intention of the parties, and would properly take the place of direct evidence regarding their intention where that cannot be had. One can readily see that an almost boundless field for the activity of the method of free decision is here opened up; espe- cially if the courts will attach all the weight that belongs to it to the doctrine of good faith, which we may say constitutes in our modern law the pivot around which the play of autonomous individual wills must revolve. I desire, however, to call attention to still another point in connection with the same general theory. 9. The Extent of the Principle of the Autonomy of Individual Will. In relation to legal transactions, it is not enough to show the consequences growing out of the principle of the autonomy of the will. It is also necessary, and in fact that is the first task of the court where a case is to be decided on the principles of free decision, to analyze the elements constituting the principle and to define its main outlines. What are the circumstances under which the mere will of the parties makes the law of the case? Some people have erred by assuming that in order to solve this problem one had but to consider the intentions of the parties and the circumstances from which these can be inferred. That is plainly a begging of the question, and a confusion of the effects with the conditions from which they arise. In order to determine the latter, aside from the expressions of the parties to the transaction themselves, one must obviously take into account both the social and individual interests involved. These interests must not only be manifest and firmly insisted on, without psychological duress, so to speak, and with a degree of consciousness psychologic- ally certain, but also make it necessary that the positive 26 GENY: FREEDOM OF DECISION [Cn.l law will recognize without hesitancy the obligatory char- acter of the transaction. If we could only bring ourselves to be guided by these ideas, and rid ourselves at the same time of the obsession of abstract concepts, which here as everywhere is per- nicious, we might perhaps succeed in extending very notably our theory of the formation of contracts. Es- pecially with regard to questions for the solution of which the statute really affords no help at all, as for instance contracts between absent parties, 5 would we not soon learn to add to the merely psychological considerations, which are too often made the only basis of our theory, other considerations drawn from a wider reality? Such other considerations would show all the more perfectly what the requirements of practical life and the motives inspiring it may be, because they would tend away from rigid rules and be fit to vary and supplement the con- clusions drawn from the underlying principle without failing to give it due effect, so as to satisfy all the interests involved. I believe that it is not difficult to show how the modern development of the law even now tends in this direction. One can be but glad of this, and may wish that the movement become still more decidedly so, when he notices also in some recent theoretical works an obvious inclination to make use of analogous methods of reasoning. In a similar manner, it is also likely that the law will become less exacting regarding the complete and perfect meeting of the wills which our all too rigid theory pro- claims necessary in order that there shall be any contract at all. As a matter of fact, our practice in this regard is not at all in agreement with our theory, but rather raises an irresistible protest against the pretensions of our strict logic, although we may pass the matter over in * "Non obstat," section 932, line 2, of the Civil Code. 9] AUTONOMY OF WILL 27 silence. For instance, our theory insists that the subject- matter of a contract must be definitely expressed or at least that it must be definable from the terms of the con- tract itself; yet do we not every day see contracts for piecework entered into, without any definite statement of the price to be paid for the completed job? Or who would think, when he has given a job to some cabinet- maker or locksmith without stipulating for the compensa- tion, or when he has been treated by a physician without first agreeing on his fee, that such a contract could not be enforced and that he may repudiate his obligation be- cause the sum to be paid had not been fixed beforehand or could not be ascertained from the terms of the con- tract itself? We know well enough that in such cases the court will not hesitate to complete the contract the parties have left defective. I suppose that it will be said : Such results are to be explained by the fact that there was a tacit understanding, a fixed usage, which in good faith becomes a part of every such contract. That is precisely what I insist on, that the influence of good faith, which inheres in the making of every contract, should be frankly recognized; I am persuaded that this new element, introduced into a theory which heretofore recognized nothing but logical deductions, would have a most beneficial effect by softening its outlines and making its structure less narrow. Furthermore, I have no doubt that the same trend of ideas will lead us to recognize this: an imperfect and incomplete understanding between two persons regarding the essential points of the business with which they are mutually dealing, while it cannot establish any binding obligation, according to the strict doctrine, may yet, in a number of cases, be treated like an actual contract, and will not be left altogether without legal possibility of en- forcement. Here again some very practical observations 28 GENY: FREEDOM OF DECISION [CH.I will give us the foundation for some useful steps for- ward in the development of our science. It will presently occur to us to ask whether in fact the meeting of the minds is ever exact. Perhaps the result of our investigation will be that we shall attain a clearer view of the following truth, of which we are certainly not ignorant even now, but which we have hesitated to adopt in its entirety. The theory of contract, which has here- tofore been dominated altogether by the psychological ; idea of agreement, will have to look at that idea hereafter in the light thrown upon it by the facts of life in society. In other words, it is not so important for the lawyer to know under what conditions it is metaphysically incon- testable that the minds of the parties have met, as to know under what circumstances the approach of their wills is close enough to deserve being upheld by the law. After we have reached this point, it seems clear to me that the problem can be further solved only by a detailed examination of the nature of the circumstances surround- ing the case; and this should be made not merely from the point of view of individual psychology, but even more from that of social psychology, of ethical and economic requirements, and more generally still, of all considerations which civilized life, interpreted by the aid of science, may suggest. 10. The Same Subject Continued. Now that we have come so far, I imagine that we cannot very well avoid touching upon a delicate question which has but recently been well formulated, and which we shall treat by a method freer from prejudice and, I trust, also more fruitful than that which has heretofore been em- ployed. Is not the autonomy of individual will a part of our positive law elsewhere as well as where it is exhibited in the making of a contract, properly so called? Is it not even more distinctly present in legal acts that issue 101 AUTONOMY OF WILL 29 from a single will affecting living persons? Or, to employ a more common and at the same time clearer phrase, may not* a simple promise, expressing but the will of one party, become the basis of a legal obligation, aside from all questions of acceptance? If first we turn, for the solution of this question, to our formal sources of law as they are now actually in force, we shall have to admit, I think, that these do not take us very far. Of clearly established customary law, I believe, we cannot speak at all, in modern days, so far as this subject in any general aspect is concerned. As for the written law, it would seem pretty difficult to find therein any positive denial of the legal effectiveness of a one-sided J act of will, even aside from testamentary dispositions. We need not speak of certain declarations with legal consequences, such as the legitimization of an illegiti- mate child, the acceptance of succession, the renuncia- tion of succession, or of community of property [between husband and wife], or the offer of payment of recorded mortgages by a new purchaser of the land all of wiiich transactions imply in their very nature that there is but one party to them. Our law knows another class of such acts which all have the characteristic that one person becomes richer by the independent will of another such as, for instance, the renunciation of various rights, like a usufruct, a mortgage debt, and various sorts of easement. In these cases the statute might easily have made the effect of the act dependent on acceptance by the beneficiary. I know the answer will be that these are exceptions to the ordinary rule, which were intended as such by the legislature, as also in the case of occupa- tion and analogous acts; some persons will even go so far as to declare it impossible that the act of one person, done with that very purpose in view, and with the 30 GENY: FREEDOM OF DECISION [Cn.I intention of being bound thereby, can create an obligation on the part of another person. However, if one were to inquire into the reason for this common opinion or* the explanation for this widely spread prejudice, he would find it difficult to discover anything except that there is no provision in our statutes expressly authorizing the creation of a right by the one-sided act of an individual, and that such silence is sufficient to prohibit. The implied reasoning may perhaps be expressed still more exactly in this fashion: the Civil Code, by enumeration, limits the sources from which obligations may be de- rived. 6 This enumeration does not mention a one-sided act of will, consequently such an act cannot be the source of an obligation. I venture to say that such arguments may appear quite incontestable, and yet they do not convince me. I need not discuss the point that perhaps a one-sided promise may after all be contained in one of the enumerated classes of section 1370, which are decidedly vague and general. I should first like to know on what ground, in our modern law, the assertion can be based that the statute enumerates all the sources from which an obligation may spring and excludes all others. In other words, as I deny both the major and the minor premise of the syllogism held up to me, I must have serious doubts about the conclusion. Nor would it be possible to aid or fortify the above argument by saying that the theory of the Code which bases contracts on the consent of the parties 7 necessarily excludes the idea that a simple promise can bind the prom- isor even before it has been accepted. We may admit that the legislature intended such a result under ordinary circumstances in the case of an offer to make a contract ; that, however, amounts merely to this, that in the Book 3, title 3, and section 1370, Civil Code. ' Sections 1 108 seq. 10] AUTONOMY OF WILL 31 absence of ulterior reasons, such an offer is not binding. One cannot legitimately draw therefrom the conclusion either that the quality of not being binding is essential to the very nature of such an offer, or, still less, that under all circumstances whatsoever a declaration of intention to bind oneself, as long as it remains a mere promise, is ineffective and inoperative. Briefly, from a strictly legal standpoint and according to the rules of sane interpretation, if one does not want to go beyond the thought and intention of the legislator, he must hold that the latter, never having thought of the ques- tion raised by us, cannot have intended to solve it. Or even we might admit that he must be assumed to have thought of it and decided it negatively in the recesses of his mind and subconsciously, as it were, because he must have been under the influence of a historical tradi- tion. That, however, is rather vague in itself, and such an unexpressed and secret meaning cannot be held to have any force for the interpretation of the rule. Conse- quently, as long as both the statute and the customary law are silent on the point, we must solve the difficulty by the method of free decision on the basis of scientific inquiry. Now, when we have thus been authorized to take pos- session of the field, shall we unhesitatingly answer the question in the affirmative, as is the wont of bold reform- ers, possibly by dwelling upon the unlimited freedom of the human will, the sovereignty of individual volition? Or perhaps by insisting on the needs of society under the new conditions created by modern civilization, which demand imperiously that everybody shall be allowed as he will to take advantage of promises by which another has chosen to bind himself by his free will? That would be, in my opinion, to go far beyond the mark, and to expose our new idea to a shock from which it would never recover. The most one can really say on this point in a 32 GENY: FREEDOM OF DECISION [CH.I general way is, I believe, that nothing in our system of positive law stands in the way of holding a one-sided promise binding, and that the binding nature of such a promise even follows, prima facie at least, as a very natural consequence of that principle of the autonomy of the will which is the outcome of our modern conditions of society. At the same time, there is also no reason why absolutely every obligation of this kind should be upheld. Consequently, and because in practice the ques- tion will always be what particular promises of this kind ought to be upheld as binding, it will never be possible to find the answer without a close investigation of the dangers and advantages of each particular promise of this nature. Now we understand very well that a unilaterally expressed intention ought never to be enforceable except when it was seriously and firmly held with the con- scious desire that it should be binding. However, in a good many instances, and in the absence of some customary or statutory form of expressing the intention, it will be difficult and not without danger to hold every promise, where the promisor at the time wishes to be bound, sufficiently serious and firm. It will be wise, therefore, to scrutinize carefully the character of such declarations and to assess them at their true psychological value. Likewise, even where the firm intention cannot be disputed, one would not be able to appreciate its true legal weight without first determining whether there exists a real interest of society requiring that such a declaration be binding of itself without waiting until the party to derive the benefit therefrom has consented and thereby raised it to the dignity of a contract in the proper sense. This determination will be the result of an inves- tigation of the moral, political, economic, in fine all the social, advantages of such promises. 10] AUTONOMY OF WILL 33 From this point of view, we shall be inclined to declare binding not all one-sided promises, but only those which seem necessary in order to accomplish certain desirable social ends which cannot be accomplished in any other way, provided that they are not of such a nature as to'/ create an uncertainty regarding the title to property, which is above all other things destructive of credit. Such binding declarations will be, no doubt, promises to pay for services rendered, subscriptions for the costs of a work to be done in the common interest, offers made in contemplation of a future contract, provided they are made with sufficient certainty; and perhaps even prom- ises for the endowment of benevolent institutions, pro- vided the principles of our public law are properly observed. If we boldly recognize such promises as binding of their own force, we merely carry out 'and follow tendencies which, after all, are already clearly established in our legal system. For instance, in our private law, it may be true that the one-sided promise of compensation, as in the case of finding lost property, has never been recog- nized except on the ground of a tacitly implied contract between the promisor and the finder; yet the law does not hesitate to recognize rights growing directly out of a mere promise in other relations. At any rate, the binding character of an offer by one party to enter into a contract is at present frankly recognized during the time customarily allowed for acceptance by the other side. Again, the same is true in the case of commercial paper payable to bearer, independently of the contract from which the debt originated ; or, in the cases where mort- gage liens are upheld as security for debts payable to uncertain payees. Finally, the principle is illustrated by the cases where undertakings for the benefit of another are upheld although there is no principal contract 34 GENY: FREEDOM OF DECISION [Cn. I actually in existence. All these instances show plainly that our law tends to go beyond the narrow horizon of the Civil Code and to admit that by the side of the traditional classes there may be cases of binding voluntary obliga- tions outside of any specific contract. The same is true also in the field of administrative law. Here many of the requirements of the law of civil con- tracts are disregarded and subscriptions to benevolent purposes or works of public utility are much more easily held binding ; here, where legacies to undetermined recipients of charity are upheld on condition that the beneficiaries can be made certain, even actual endow- ments by one-sided promise are possible "inter vivos" on the same condition. When we extend our experimental test somewhat and consider the same problem by the light of history and comparative legislation, we shall find a decided confir- mation of our reasoning and direct observation. We shall see that even the Roman law, which in principle rejects emphatically the recognition of a one-sided promise as the source of a binding obligation, yet admits promises of this kind as civilly binding in cases where a religious or public interest is involved, and possibly even sometimes in cases of purely private concern. Other legal systems will be found to offer different instances in accordance with the peculiar needs of their time and circumstances. Finally, the most recent and most thoroughly studied of modern legal systems, the German Civil Code of 1896, furnishes us what might be called the type of an actual, positive system of this kind, which is quite capable of serving as a model. Is not all this proof enough, drawn from the actual facts, that no absolute principle of logic commands us to reject & priori the creation of valid rights by a one-sided exercise of will, and that, quite the reverse, the needs of legal life require, not that all 10] AUTONOMY OF WILL 35 one-sided promises be held binding, blindly and without distinction, but that this be done in certain carefully regulated and judiciously selected instances. A free investigation of all the circumstances including scien- tific data as far as possible based on statistics and every other means of learning social facts, as well as ethical, political, and economic considerations should determine the cases and conditions in which in the actually existing state of civilization in France it would be advisable that the power of autonomous exercise of will over private relations should receive this extension, and technical considerations of law should be utilized merely to define these instances more accurately. 11. The Principle of Equilibrium of Interests. Finally, however, the problem of the limits which should be assigned to the principle of the autonomy of the will in the creation of individual rights, will be shown to be governed largely by a general principle which constantly manifests itself also in all those legal problems which by their very nature cannot be within the jurisdiction of the direct exercise of will by private individuals, or which have been definitely given over to some other form of regulation. This principle, which one may call that of the equilibrium of the interests concerned, must be the guide of the courts, as it should be that of the legislator and the guardians of legal custom, in all those cases where there is no sufficient and valid agreement between the parties, so that it becomes necessary to establish auth- oritative rules of conduct such as constitute positive legal order. The object held in view by this principle is nothing but that of giving the greatest possible satis- faction to the wishes of the various parties consistent with the realization of the social purposes of mankind. The general method of accomplishing this purpose is to recognize all the conflicting interests concerned, to 36 GENY: FREEDOM OF DECISION [CH.I estimate their respective force, to weigh them, as it were, in the scales of justice so as to give the preponderance to the most important of them tested by some social standard, and finally to bring about that equilibrium between them which is so greatly to be desired. It will readily appear that the legislator also proceeds in the same way when he enacts provisions intended to supplement or regulate private acts, if one analyzes in detail certain statutory provisions in cases where the conflict of interests is particularly apparent. 8 We need not speak of certain traditional doctrines which our modern statutes have adopted in an elliptic form, such as the theory of the Pauline action, with the neces- sary conditions under which it may be maintained according to the nature of the deed drawn into question (to wit, whether it was given for a consideration or not), and the good or bad faith of the defendant. 9 Apart, however, from these special applications of the principle, it would be easy to show how the same legis- lative intention reappears in the greater part of all the doctrines in our private law, even in those which are frequently explained on purely logical grounds. Such for instance is the theory of title by accession, 10 of set- off, 11 in which logic really does not come in except secondarily and, so to speak, as the technical instrument of equity, which itself is grounded on the principle of the equilibrium of interests which in all these subject-matters is entirely dominant. 8 I cite, as they come to my mind at random, sections 549, 555, 1116, 1238, 1240, 1299, 1377 line 2, 1384, 2037, 2131, 2265, 2279-2280 of the Civil Code and 216 of the Commercial Code, as examples of particular probative value. See section 1167 of the French Civil Code; sections 446-447, Com- mercial Code. > Sections 551-577, Civil Code. " Sections 1289-1298, Civil Code. 11] EQUILIBRIUM OF INTERESTS 37 Free legal decision on the basis of scientific investiga- tion ought to do within its own field what the written law does for those portions of the law which have seemed to stand in need of more definite regulation. Our courts have recognized this doctrine, to the great scandal of certain authors, when they have held valid in favor of third parties acts of an heir-apparent affecting an estate which finally does not go to him at least in some particularly equitable cases; or when they have established a whole system of presumptions in aid of title by prescription, in order to make possible or easier the proof of title to real property; and similarly when they have upheld the full force and vigor of the ancient adage: "Quae temporalia ad agendum perpetua ad excipiendum." Is not the same thing true in certain peculiarly delicate cases of conflicting interests, which have been very happily settled in actual practice, such as those growing out of the existence, at the same time and in the same property, of special mortgages and gen- eral mortgages of prior rank? It is not different when the statute is silent or ambiguous and the courts have to decide whether the surety or a third party in actual possession of the land mortgaged for the guaranteed debt are to be subrogated to the rights of the mortgagor. 12 Again, how can the legal maxims applicable to such mat- ters as the secrecy of confidential letters, the ownership of letters sent, or the right to use a family name, which can be understood in so many different ways, be satis- factorily and equitably applied except by balancing all the interests involved one with the other? As a matter of fact, the tendency recently has been less and less to refrain from accepting such a method of interpretation, even where the result seems to run counter to some positive statute, at least where the statutory provisions 12 As provided by section 1251, subs. 3 of the Civil Code. 38 GENY: FREEDOM OF DECISION [Cn. I leave an opportunity for broad construction in favor of an evident equity. Occasionally the courts have gone even farther in the direction of free decision and for- gotten the bounds necessarily set to the creation of law by this method, notably in those cases where forms of lien have been recognized for which there was no provision at all in the statute. On condition, however, that such excesses be avoided, of committing which there is at present little danger anyhow, on account of traditional tendencies to the con- trary, the science of administering the law could not do better than frankly to adopt, where the formal sources of law are silent, this method: to seek the solution of all legal questions, which necessarily grow out of the conflict of various interests, by means of an accurate estimating of the relative importance and a judicious comparison of all the interests involved, with a view to balancing them against each other in conformity with the interests of society. For example, in this manner it would no doubt be possible to solve one of the most im- portant problems in law, which in one form or the other is liable to arise in every lawsuit, the importance of which Jhering has emphasized a number of times, and regarding which our statutes are very nearly silent, to wit, the problem of stating which party has the burden of proof under the various legal conditions which may arise. By the same method we may also, I believe, find the means of defining a doctrine which has hardly been more than touched upon by our court decisions, to wit: what constitutes an abuse of right, so as to make the party exercising it liable. Although the absolute for- mulas of the Roman law have come down to us, our modern legal conscience rebels more and more against the idea that the exercise 'of any right can be without limits. This tendency shows itself in a doctrine which finds 11] EQUILIBRIUM OF INTERESTS 39 much favor to-day, refusing to apply the traditional maxim "Neminem laedit qui suo jure utitur" in all cases where a real abuse of a right is apparent. This doctrine, which has for a long time been upheld with regard to certain abuses growing out of the ownership of land and supplements in a measure the code provisions relating to the rights of adjoining owners, has in these latter days been invoked against certain manifestations of individual liberty which have required repression by private law because they encroached on the rights of others. It may readily be seen that the great difficulty with this theory, which taken by itself is not likely to be much disputed, is in the clear definition of what con- stitutes an abuse of right, exceeding its legitimate exercise to such an extent that it gives rise to a legal liability. May we take as the distinguishing characteristic of such an abuse, from a moral and psychological point of view, the intention of injuring another while apparently exercising a right? That would be nothing but a return to the much decried doctrine of "emulation" [some forms of unfair competition] and to the maxim which is so hard to apply: "Malitiis non est indulgendum." My personal opinion rather leads me to believe that the true and just limitations of individual rights will be dis- covered only by an examination of their economic and social object, and a comparison of the importance of this object with that of the interests opposed to it. However that may be, it suffices here to observe that this import- ant question of the abuse of rights, regarding which our statutes are almost completely silent, can be solved in a judicious manner only by the balancing of all the ethical, political, social, and economic considerations which enter into the conflict of the interests involved. 12. The Same Subject Continued. In order to ex- press my ideas fully on this subject, I should say I am 40 GENY: FREEDOM OF DECISION [CH. I convinced that greater and more certain progress will be made in the law by a frank method of investigation which will openly recognize the gaps in the written law. By this method we may then attempt to supply what the statute lacks by means of an independent scientific proc- ess, whereby all the surrounding circumstances will be examined and an equilibrium of all the interests involved be produced if possible. This will take the place of the subterfuge of forced constructions of the text, which is to be condemned not merely because it fails to under- stand the true nature of statute law and the proper rules for putting it into effect, but which must needs result in a falsifying of the ideas contained in the text and lead to unsatisfactory conclusions. I may be permitted to make this matter still clearer by choosing as an illustration another extension of the traditional conception of civil liability for injuries. I have in mind what has been called the doctrine of objective liability, which has arisen in modern days from a laudable desire to give a fair compensation for certain accidents the cause of which is unknown, or for which no specific negligent act can be established. 13 Josserand has reviewed and analyzed in his "De la Responsabilit6 du fait des choses inanimees" 14 the vari- ous theories on this subject which have been proposed prior to his own, with remarkable sureness and delicacy of touch. He has had little difficulty in proving that these theories have failed to bring about the desired results, although they have all done violence to the statu- tory texts on which they have been built; this has been the case without distinction, whether they involved II It is well known that notwithstanding the statutes of April 9, 1898, and June 30, 1899, this is still an open question for all those injuries not coming within one of these statutes. ' 1897; pp. 11-52. 12] EQUILIBRIUM OF INTERESTS 41 an extension of contractual liability, or whether they started from an amplification of the presumptions con- cerning negligence and thereby pushed the doctrine of liability for tort's to an extreme point. However, when we stop to consider the new concep- tion of objective liability on statutory grounds from the same point of view, such as has been advocated by Saleilles since 1894, and further developed by the same author and Josserand, will we not unavoidably be driven to recognize that this ingenious theory has precisely the same fault as those gone before, in so far as it purports to be based on positive statutory provisions, so that the principle of employers' risk may be discovered, as has been said, in the Civil Code itself? Whether, with Josserand, we base it almost entirely on the empty and vague formula of section 1384 line 1 [A person is respon- sible . . . for the injuries caused by his own act], or are radical and bold enough to go with Saleilles to the first provision of the chapter and substitute for the conception of fault as expressed in section 1382 [Every human act whatsoever which causes injury to another makes the person through whose act the injury occurs liable for the damages] the simple relation of cause and effect, in either case we shall find it difficult to deny that we exceed the meaning actually expressed in the text, or twist the words of the legislator out of their natural meaning. Yet the principle so derived is still far from what the law should be, because with all the forced con- struction of the text the provision itself cannot be changed and the best rule that can be read into it is a liability for accidents caused by some piece of prop- erty belonging to the employer, while for all those orig- inating without some material object over which the employer had control there is still no adequate and equi- table provision. 42 GENY: FREEDOM OF DECISION [Cn.I I am far from wishing to oppose the just and reasonable idea which has inspired these new theories. I agree with that proposition altogether, I merely wish to point out the defects and shortcomings of certain mental pro- cesses by which it is attempted to establish it. Accord- ingly, I maintain that this legal principle could be more easily defended from the standpoint of safe reasoning, and would be, more readily adaptable to the facts, if we were to admit frankly that the Civil Code in section 1382 and the next following sections provides only for injuries resulting from the fault of another, but that these provisions do not deal at all with inherent risks of the employment. The real question is to find out how the damages resulting from a pure accident can be divided among two or more persons who are all affected under the circumstances of the case ; and we should say that in the absence of a statutory provision it is the office of the court to regulate the matter as appears best to promote justice and social utility. In order to learn what will best promote justice and social utility, there is no way but to observe carefully what is the actually prevailing moral sentiment regarding such relations between man and man, and to inquire into the social and economic conditions so as to estimate the various interests involved at their true value in accordance with the state of our civilization as it exists at the time of rendering judgment. Briefly put, we always come back to an attempt to estab- lish an equilibrium between interests that are contending with each other or seem to be inconsistent. This result will never be obtained except by examining thoroughly the elements of every system of positive law, which, as I have shown in another place, are not logical entities, but those ethical and economic realities which alone can give us an insight into the effective forces of social life. 12] EQUILIBRIUM OF INTERESTS 43 Moreover, as a general proposition at least, the rules so derived would give way to any inconsistent stipula- tion entered into by the autonomous will of the parties, because it must be held, & priori, that these understand better than anybody else, even the Government, what will best promote the interests which they are protecting for the benefit of all concerned. 13. The Principle of the Superior Interest of the Community. In whatever way, however, we allow the principle of the autonomy of individual wills to assert itself, whether it supplements or contradicts a rule established by authority, under no circumstances can it be held to be without limits. Although primarily the exercise of individual wills may create a legal relation at the discretion of the parties interested, sometimes higher interests will intervene to set more or less narrow bounds to its power and to substitute officially a relation imposed by authority to one created freely and spon- taneously. In other words, the satisfactory equili- brium of all the interests involved requires in such cases a compulsory standard which can brush aside the diver- gent fancies of the parties. This is at the bottom of what is commonly called the principle of public order. I shall have to agree that these two words are vague and ill-chosen to express the meaning to be conveyed thereby. Similarly, I confess that all attempts at defining "public order" in this sense, that is, definitions which attempt to discover a criterium outside of every concrete institu- tion, by which one may discern at once the legal rules concealed in the provisions of private agreements, have failed completely. However, to conclude from this, as seems to be the idea of M. de Vareilles-Sommieres, that we ought not to recognize a class of laws as being charged with a superior social interest, but rather to assert that no private person can derogate from the effectiveness 44 GENY: FREEDOM OF DECISION [Cn. I of any law, would in my opinion be a vain attempt to find a way out of the dilemma and amount to nothing more than to transpose the difficulty to another place. For it would seem certain that among the rights accorded to individuals by our system of law there are but a few which cannot be voluntarily renounced. It would not be a very difficult matter to determine what particular statutes giving such rights cannot be nullified by incon- sistent private agreements, or rather, what are the rights given by statutes which one may not voluntarily surrender. It would be purposeless, however, to change the cus- tomary way of stating the problem, unless the solution could thereby be made easier. The only things worth adopting among the criticisms that have lately been directed against the traditional conception of "public order" in its relations to private law are these: first, that, stating the matter negatively, there is no question here, no matter if the words used may make it appear so, of a set of interests really distinct from and separated, so to speak, by a watertight compartment, from what are properly private interests; furthermore, speaking affirmatively, the question resolves itself into finding out which rules, among those constituting the body of our private law, are those which on account of their nature and purpose cannot be set aside by a free regulation of the interests involved through acts based on the principle of the autonomy of the will ; or what rules will at least restrain the exercise of the will of the parties sufficiently to prevent the sacrifice of superior interests by the will of private persons. When it is put in this form, the question becomes of considerable importance. It has reference not merely to legal rules embodied in the written law, but just as much to every other legal rule that can possibly be 13] SUPERIOR SOCIAL INTEREST 45 affected by the act of private parties, whether such rule arises under customary law or is the result of the free investigation of legal science. In fact the question enters into every law of sucl} a nature that it may sometimes be subject to the will of the parties and sometimes rises superior thereto. In the case of rules that may properly be made statutory, it would seem to be the proper busi- ness of the legislator to indicate in his statute what effect he intends to give to it with regard to inconsistent private agreements. It will have to be said that few statutes contain any such clause, but that in most cases the con- struction of their provisions with regard to this point has been left to the discretion of the courts. It follows that we shall here find a vast field open to the independent investigations of legal scholars not only in connection with customary rules and principles based on scientific research, but even directly in connection with statutory provisions. Such necessary investigations clearly cannot be carried on profitably except by questioning our moral nature, inquiring into the principles of the political organization under which we live, and studying the requirements of our economic environment so that we may learn there- by those superior rules which form, as one might say, the conditions under which modern society lives and which in consequence must necessarily be held superior to any mere private acts of will. 14. Other Applications of the Method of Free De- cision. Thus the courts are led, without exceeding the well-known limits of private law, whenever they have no formal guidance furnished by statute or established custom, to search for light among the social elements of every kind that are the living force behind the facts they deal with, if they wish to proceed with any assurance of being right. 46 GENY: FREEDOM OF DECISION [Cn.I The same thing would be even more evident if we were to study certain other problems that cannot be solved along the traditional lines and bring into play even more directly certain moral and economic interests which our written laws do but very little to balance against each other. Such problems may be found in connection with a great variety of subjects. Thus there are the rights inherent in the personality of the individual man and the consequences flowing therefrom, among which may be mentioned the rights of intellectual prop- erty. Then there is the problem of a special legal treatment of commercial rights and their proper distinc- tion from ordinary civil transactions. Again, we may mention the question of the legitimacy and legal effects of understandings having for their purpose the regulation of industrial production ; the very complex questions in mining law, growing out of the relations between the surface and the underground workings, and many other similar matters. These questions cannot all be solved, and our positive law regarding these subjects be settled, except by means of attentive observation of social facts and a reliance upon well-ascertained scientific data. Here I must make an end of my observations. I believe that what has been said will suffice to show the fecundity and to explain the working of this necessary part of juridical method, which I have called "free decision on a scientific basis." 1] EHRLICH: FREEDOM OF DECISION 47 CHAPTER II JUDICIAL FREEDOM OF DECISION: ITS PRINCIPLES AND OBJECTS BY EUGEN EHRLICH 1 I. BUREAUCRATIC LAW AS CONTRASTED WITH PEOPLE'S LAW 1. RELATIONS OF LEGISLATOR AND JUDGE. 2. IN- CREASED IMPORTANCE OF STATUTORY LAW. 3. RULES OF DECISION INSUFFICIENT TO REGULATE ACTUAL LIFE. 4. IMPORTANCE OF UNWRITTEN LAW. 5. LAWYERS' LAW. 6. DEVELOPMENT OF INTER- NATIONAL LAW. 7. GROWTH OF LAW WITHOUT LEGIS- LATION. 8. LEGISLATION NOT A PRIMITIVE FORM OF LAW. 9. THE COURTS AND THE STATUTES. 10. MODERN CODES. 11. INADEQUACY OF MERE STATUTORY LAW. II. STATUTORY LAW AND ITS OBSTRUCTION TO FREE JUDICIAL DECISION 12. ADVANTAGES AND DISADVANTAGES OF CODIFI- CATION. 13. LEGAL TECHNICALISM. 14. FURTHER OBJECTIONS TO THE TECHNICAL METHOD. 15. TEN- DENCIES OPPOSED TO TECHNICALISM. 16. APPROXI- MATION TO FREE DECISION. 1 [Professor of Roman Law at the University of Czernowitz. This is a translation (omitting the first six pages) of his "Freie Rechtsfindung und freie Rechtswissenschaft," Leipzig, 1903. Another important work of the author in this field is "Grundlegung der Soziologie des Rechts," Munich, 1913. The translation is by Ernest Bruncken.] 48 EHRLICH: FREEDOM OF DECISION [Cn.il III. CHARACTERISTICS OF THE PRINCIPLE OF FREE JUDICIAL DECISION 17. FREE DECISION NOT ARBITRARY. 18. THE BASIS OF FREE DECISION. 19. LEGAL GROWTH AS AFFECTED BY THE LAWYERS. 20. THE PERSONALITY OF THE JUDGE. IV. THE TASKS AWAITING FREEDOM OF JUDICIAL DECISION 21. THE WORK OF LEGAL SCIENCE. 22. THE PRACTICAL OPERATION OF THE LAW. 23. LEGAL REGU- LATION AND ACTUAL LIFE. 24. LEGAL SCIENCE AND THE COURTS. 25. THE LAW OF EVIDENCE. 26. CONCLUSION. I. BUREAUCRATIC LAW AS CONTRASTED WITH PEOPLE'S LAW 1. Relations of Legislator and Judge. Modern systematic legal science inclines to explain each rule of law principally by seeking to discover the intention of the legislator; but sufficient stress has never been laid on the fact that the significance of law in the daily life of a people depends far more on the persons charged with its administration than on the principles according to which it is administered. The same rule is likely to have an essentially different meaning in different coun- tries or at different periods, for no other reason than that the persons sitting on the bench are differently trained, have a different temperament, hold a different official or social position. This is apt to be more vividly realized by the trained historian of law than by the analytical student. To the historian, the "praetor" and the "prudentes" still speak in the Pandects, the "Schoffen" in the old German law, and the judges of the Superior Courts with the Chancellor, in English common law and 1] BUREAUCRATIC LAW 49 equity grown out of the same Germanic root. Similarly, the law prevailing to-day on the European continent must be viewed as a system of law peculiar to a judiciary composed of learned bureaucratic judges. For while we may properly characterize the modern State as a State based on law, yet we must not forget that on our lips that term means, in essence, a bureaucratic State, although doubtless it is possible for a State to exist which is based on law and is not bureaucratic, as con- versely one may conceive of a bureaucratic State that is not based on law. We are all children of the bureaucratic State which has now dominated our political and social life for several centuries. Hardly one of us is likely, without great difficulty, to free himself from the conceptions and lines of thought generated and fostered thereby. In the eyes of a bureaucracy law is properly nothing but a body of directions given by the Government to its officials. To be sure, in its effects the law must apply also beyond the army of officials; for the very purpose of law is to regulate the conduct of the whole people that is subject to the government. At this truth, how- ever, we are apt to arrive only in a roundabout manner ; we reason that the people submit to the law because the Government officials compel them to do so, or would compel them if they dared to disobey. 2. Increased Importance of Statutory Law. From the fact that modern judges are Government officials charged with the administration of the law, and from the conception of law as a command given by the Govern- ment to the judge, arises the supereminent importance now attributed to the written law among legal sources. For in a statute it is apparent, in a far more direct manner than in any other form of law, that the Govern- ment addresses a command to its officials. Whoever 50 EHRLICH: FREEDOM OF DECISION [CH.II inclines to conceive of law as a governmental command will find himself compelled to consider every rule of law more or less as if it were a statute. As a matter of fact the prevailing theory regarding the sources of law does take that ground. It is true that the introductory sections of textbooks will assure us that customary law is of equal force with written law. Yet, if one looks at the actual practice rather than the verbal expression, one will soon come to the conclusion that treatises, manuals, essays, and decisions proceed from an assumption never, of course, openly confessed that there is really no law except statutory law. Those who have not grown up in a bureaucratic State, but have seen living customary law in actual practice, will find it difficult to understand the tra- ditional lore about customary law, such as the doctrines of its "origin," its "presuppositions," the question whether a statute may prohibit the derivation of a rule from custom (although that is all the time supposed to be of the same binding force as the written law), or whether it may restrain such derivation by burden- some conditions. When these doctrines regarding the application of customary law were formulated, almost in the form in which they are taught now, by the jurists of the 17th and 18th centuries, the intention was merely to give to the bureaucratic judges a standard by which to determine the validity of customs derived from Germanic law, which were always looked at invidiously and which had to be pleaded and proven by the party. To-day such doctrines are obviously no longer in accord- ance with the times, and no doubt scientific reexamina- tion will put an end to them. The essential nature of the bureaucratic State is expressed by the fact that for us the statute is the pre- dominant form of law. Similarly, the content of the 2] IMPORTANCE OF STATUTORY LAW 51 law of the bureaucratic State depends on the essential character of that form of government. In essence, such a system of law is simply a rule of decision. Its exclusive or almost exclusive purpose is to direct officials how to deal with the matters intrusted to them, and particularly how to decide legal controversies. That is, of course, a very one-sided conception ; for law as a rule of decision may indeed be the side of law most interest- ing to the lawyer, but it is by no means the only and not even the most important side. Law exists for other very different purposes in addition to the settlement of controversies. It is the very foundation of the social organism, or (to use an expression of Schaffle, already growing antiquated), law is the skeleton of the social body. It is true that social arrangements do, in most cases, furnish the rules by which disputes growing out of such arrangement have to be decided; that, however, is manifestly but a subordinate, secondary function. The by-laws of an association may, under some circum- stances, provide a useful basis for the settlement of a legal controversy; yet those by-laws serve, first of all, to regulate the work of the association. When the Austrian Civil Code provides that the husband shall be the head of the family, it defines correctly the organi- zation of the family as it exists to-day; but it does not thereby furnish a rule of decision for controversies, and perhaps does not intend to give any. We all know that in Rome an "obligatio" could arise out of an agreement to do all sorts of things; yet, as long as the classical form of procedure continued, the judgment was always for the payment of a sum of money. The rule of deci- sion did not correspond with the legal nature of the relation "aliud erat in obligatione, aliud in solutione." Eck, in a well-known essay, explains how in Rome a 52 EHRLICH: FREEDOM OF DECISION [Cn.II sale was a contract of transfer of title, exactly as to-day, although the rule of decision in the Roman law provided a liability merely on the ground of a license to take possession. The clearest case of a difference between a rule of decision and a rule of action is that of "obligatio naturalis" 2 a duty actually arises out of it, yet its existence cannot be made the basis of a judgment for the payment of money. 3. Rules of Decision Insufficient to Regulate Actual Life. No doubt it would be all wrong to assume (as the old school of Liberal politicians used to do) that law consists merely of rules of decision, and that the State has no business to organize society directly by means of law. Many modern agrarian institutions have arisen directly out of State activities; modern social legislation has already created enormous organizations; and above all, the State organizes itself by means of its military, governmental, and administrative institutions. Not- withstanding all that, the bulk of the law enacted by the State undoubtedly consists of rules of decision. Broadly speaking, the State can do nothing but issue commands to its officials, while the officials can do nothing but interfere when they are appealed to, and, as a rule, that is true even where they ought to act "ex officio." However, the attempt to change social life by means of rules of decision rarely accomplishes its purpose perfectly; generally speaking such means are inadequate to the ends. People go on just as before, even if once in a while a lawsuit is decided differently from what would have been the case under the former rule. If at the present moment a statute were to be passed giving the decisive authority in all family matters 2 [An "obligatio naturalis," in the Roman law, is a liability void so far as the possibility of enforcing it goes, while it is still executory; yet, if it has been executed, it may become the basis of further legal con- sequences. TRANSL.] 3] LAW AND ACTUAL LIFE 53 to the mother rather than to the father, the new law would probably have an effect only in the comparatively rare cases of judicial decisions relating to family affairs. The social organization of the family would probably not be at all changed thereby. Anybody who should assert that the broad foundations of social life, such as property, contract, family, succession, were established by such petty instrumentalities, or that their develop- ment was materially dependent on them, would be con- tending against the plainest evidence. 4. The Importance of Unwritten Law. But, even of rules of decision, the smallest part is the result of State action. Every sort of protection of rights by the State begins with enforcing the payment of compensatory damages, which in primitive times the injured party sought to recover on his own authority and by his own power. At the moment when the judgment of a court is substituted for this primitive self-help, there are no rules of decision in existence except those flowing from the very nature of the social organization. In other words, they are derived from such sources as the nature of property in the form it assumed directly under the conditions of primitive ownership ; also from the nature of those associations which are of so much importance in primitive society, like the clan, the family, the com- munity, the guild ; from the customary subject-matters and forms of the most ancient contracts, and the primi- tive forms of intercourse, which are mostly older than any sort of legal protection. Decisions are first preserved by oral tradition, then written down, collected, com- mented upon, generalized, and at last codified. Thus arise those peculiar systems of law in the special keeping of lawyers, which are, in many different forms, charac- teristic of the early times of all the nations of the world. They are legal science and legal rule all in one, like the 54 EHRLICH: FREEDOM OF DECISION [Cn. II old "jus civile" of the Romans which still lives, unchanged in essentials, in the writings of the classical Roman jurists and the great compilation of Justinian. The decisions, therefore, are not based on the rules of law, but the rules of law are deduced from the decisions. The law on which the decisions are based is the "jus quod est." Paulus, who could still observe the actual working of a living law of this kind, puts what he has learned in actual experience tersely into the famous maxim: "Non ex regult jus sumatur, sed ex jure quod est regula fit." The decisions are older than the rules, the law of the lawyers older and incomparably richer than the law of legislatures. 5. Lawyers' Law. It is well enough to call such lawyers' law 3 "customary law," as is done in the books; only, one should not forget that this expression covers several very different things. The lawyers' law of com- merce is almost entirely the custom of merchants. The lawyers' law of damages and procedure arises from the gradual mitigation of arbitrary self-help, especially after the custom of calling on the judge to settle quarrels has become obligatory. The lawyers' law of primitive associations, both local ones like the commune, and social ones like clan and family, is based on primitive social inclinations of mankind; with these, all such associa- tions appear, and when they decay the associations also fall into irremediable decline. From such tendencies also the law of succession takes its origin almost entirely. In the lawyers' law growing out of the distribution of property can be found the rigid expression of social relations of power; for upon these depends the regula- tion of such matters as the services to be rendered by the 3 [The word "Juristenrecht," used in the original text, comprises first of all those Roman law rules based on the "auctoritas prudentium"; next also any law developed by a special class of lawyers, like the com- mon law as found in the decisions of our courts. TRANSL.] 5] LAWYERS' LAW 55 villein to the lord of the manor, or the question whether after the decease of the feoffee the land shall return to the feoffor or go to the heirs of the feoffee's body. It is clear that lawyers' law could not, indeed, create social institutions, but it could delimit them firmly and give them a theoretical definition. It could do this especially where, as among the Romans, it had a direct effect upon actual life by means of the practice of fol- lowing the opinions of consulting lawyers. Nobody is likely to imagine that the lawyers could have established, for example, a legal institution like usufruct (or life estate in land) ; but it was they who made the form of usufruct in Rome serviceable for that purpose, and it was also their business to find a rule for the division of profits between the owner and the beneficiary. In all such cases the rules of decision are derived from the nature of the social institutions and processes with which the lawyers had to deal, and in the same way the practice of the lawyers adapts itself to the tendencies already noticeable in business and, so to speak, formulates the wishes of business men. 6. Development of International Law. We may now call attention to a similar course of development which perhaps is shaping itself before our very eyes. It is not entirely improbable that in the course of time a judicial power and a system of administering law may grow up, to which the disputes between States may be subject in the same sense in which to-day contentions between private persons are subject to the judicial power of the States. The rules of law according to which such an administration of justice would be carried on could not possibly, at first, be anything but a law- yers' law derived from the nature of the State and the existing customs of international legal relations. Zitel- mann, in his "Private International Law," shows what 50 EHRLICH: FREEDOM OF DECISION [Cn. II a multitude of rules that might also serve to decide public international disputes could be derived simply from the principles of local and personal jurisdiction. Surely this process, which is easily conceivable by a modern lawyer, represents very clearly what has already occurred once before, when judicial remedies were sub- stituted for self-administered justice. These judicial remedies were based upon a system of lawyers' law derived from the nature of the disputes submitted to the courts and from the existing customs of human intercourse. If, accordingly, someone were to assert that the various States owed their origin or continued existence to the protection they received from this species of lawyers' law as administered in the inter- national courts, he would be about as near to the truth as those who, at the present time, assume that the law of property, family, contract, or succession is in some manner founded on the protection given to it by the State by means of the rules of decision established by it. 7. Growth of Law without Legislation. For the same reason, the rules of decision already in existence are necessarily in a continuous state of change, simply on account of social evolution. This can be observed most clearly in the case of the adopted Roman law. For what was adopted was not, of course, the legal relations existing among the Romans, but merely the Roman rules of decisions, and, among these (as already stated), almost exclusively those belonging to the body of law- yers' law. Now we find ourselves confronted by this remarkable situation, that the Roman rules of decision are filled with an entirely new content by the modern, native legal relations to which they are applied. Looking at it superficially, one might think that the Roman law of debtor and creditor was adopted almost completely. Yet, in the case of a Roman "obligatio," 7] LAW WITHOUT LEGISLATION 57 creditor and debtor were not individuals but groups of individuals, legally represented by the "paterfamilias," who alone could do a legal act. 4 Obviously, the fact that to-day this relation is not one between groups of people but between individuals is a difference so funda- mental that as against this all similarities in detail must disappear. Again, almost before our eyes, the matri- monial relation is turning from a relation of dominion of a man over a woman into an association of two indi- viduals of equal importance and equal rights ; the paternal authority and the authority of a guardian are becoming a public office instead of a private, profitable right. Transformations of this sort, pregnant with immeasur- able consequences, are likely to be at work every moment in affecting legal and social judgments concerning legal relations; yet it might not be necessary on that account to change a single line of the written law. Many a thing is to-day considered a bitter wrong done to a matrimonial partner, or a breach of faith toward a ward, which perhaps as late as the first half of the 18th or the first third of the 19th century nobody would have con- sidered wrong. The most tremendous and irresistible legal revolutions are going on in the social institutions themselves and transform radically the rules of decision of the lawyers' law, sometimes without so much as entering into the consciousness of the parties or even of the lawyers themselves. 8. Legislation Not a Primitive Form of Law. The formulated law proceeding from the government is essentially different from the lawyers' law. The statutes, 4 To this group of individuals belonged not only the members of the family, but also the slaves and, in the more ancient time, apparently also the freedmen, even although these were capable of having legal rights and doing legal acts. Comp. Cicero, "Epistula ad Quintum," I, 1, 13: "libertis quibus illi (maiores) non multo secus ac servis impera- bant." 58 EHRLICH: FREEDOM OF DECISION [CH. II as a type, are much newer than customary law or lawyers' law, and are probably everywhere a relatively late phenomenon. In antiquity, it seems to have become well established among Romans and Athenians only, although in the other Greek States there existed con- siderable beginnings toward it. The earlier Middle Ages likewise proceeded hardly beyond attempts and transi- tions. Administrative ordinances and provisions relating to peace and war or public works are, of course, not properly counted among statutes, even when they are adopted by the assembly of the people. The "codes" of Hammurabi, Moses, Manu, Zarathustra, of the legendary Minos and Lycurgus, the Roman "leges regiae" and Twelve Tables, the Germanic "leges barbarorum," the Koran, all these amount merely to the recording and editing of existing ceremonial, ethical, and religious rules, and rules of customary law. Sometimes they were mere private records, sometimes they were made under the authority of priests or rulers; sometimes, even, they were edited rather freely and contain exten- sive changes ; and at a later period ordinances were added abrogating or amending objectionable or obsolete legal customs. These begin to approximate closely to statutes. But a statute proper as regards subject-matter, that is, an abstract rule, directing the people how to act in the future, presupposes a decidedly advanced conception of the functions of the State, as well as governmental agents ready and capable of enforcing such a rule, and some comprehension of the purpose of the law among the broad masses of the people. An oriental despot may be able by a nod to raze a city, but he cannot pre- scribe to his subjects the form of the contracts they make among themselves. 9. The Courts and the Statutes, Evidently the relation of the judge toward the statutory law is quite 9] COURTS AND STATUTE LAW 59 different from his relation toward the lawyers' law. The statute gives him commands, the lawyers' law offers instruction. Lawyers' law derives its force from its foundation in a just judgment regarding existing relations, while the statute derives it from the power of the government. Courts receive commands from the legislative power having authority over them, but acquire information wherever they find it. English courts cite unhesitatingly American decisions, American courts cite English ones but to base a judgment on a foreign statute would be utterly out of the question. 5 In the same manner the Roman lawyers' law has been utilized wherever it was taken simply as "written reason," as in Scotland, to some extent in the Low Countries and in France, and even in Germany until the rise of the learned judiciary. But modern bureaucratic judges, as was shown above, have lost, in consequence of their official position and their whole legal training, all pyschological capacity to find in a legal rule anything but a command. Thus the development of a learned governmental judiciary brought about a tendency to treat lawyers' law as if it were of the same nature as statutory law. In this manner what originally was merely instruction was raised to the rank of a command. 10. Modern Codes. The turning of lawyers' law into written law found its consummation in the modern civil codes. Like the Corpus Juris, these are for the most part codifications of the lawyers' law, but statutory provisions proper are also to be found in them. Exter- nally, the lawyers' law is here entirely assimilated to the written law; and this fact has already entered so B Where foreign statutes are cited as authorities, as is done frequently for instance, by Swiss courts with regard to German statutes, the foreign law is treated not as a statute but as "written reason," just as the opinions of an author might be cited. 60 EHRLICH: FREEDOM OF DECISION [Cn. II deeply into the legal consciousness of the people and the modes of thinking of the lawyers, that even those will have to reckon with it who do not overlook the internal differences on account of the external assimi- lation. After all, lawyers' law remains lawyers' law even when it is put into sections and adopted by a representative assembly; the distinctive character of this source of law will continue to produce its effects below the surface. Yet it is apparent on all sides that this intrinsic difference finds no sort of outward recognition. Even the fictions and constructive assumptions of the civil law are in force as if they were in the nature of real statutes. It is assuredly very doubtful whether there ever have been, in Germany, servitudes in the Roman sense; yet the whole civil law relating to servitudes, taken as it was from Roman conditions, had as a matter of course to be applied to those legal relations which in the German civil law were treated as analogous to Roman servi- tudes, even to such an extent that one had to sue by a form of action like the Roman "actio confessoria." 11. Inadequacy of Mere Statutory Law. This process, resulting finally in the practical elimination of customary law and the turning of lawyers' law into statutes, has given to the external form of modern law a rigid immo- bility which apparently renders impossible all devel- opment except by means of legislation. That form corresponds very well to the spirit of the prevailing scientific doctrine, and sometimes it is actually advocated in so many words as the true principle. Yet, not- withstanding all this, that formal rigidity has always been much more apparent than real. The reason for this is by no means lack of intention to make it real, but rather the existence of certain truths which, like all truths, cannot be kept from asserting themselves 11] DEFECTS OF STATUTE LAW 61 No theory of the application of law can get around the difficulty that every body of formulated rules is in its very nature incomplete; that it is really antiquated the very moment it has been formulated. Consequently, it can hardly govern the present and never the future. No such theory will ever be able to prevent the perpetual course of evolution of the social institutions to which the law is applied, whereby the formulated rules of decision are constantly obliged to deal with new subject- matters. And it will also never be possible to avoid the fact that the individuals intrusted with the applica- tion of the law, being children of their nation and their age, will apply the law in the spirit of their nation and their age, and not in the spirit of past centuries, accord- ing to the "intention of the legislator." The most solid theories and the most powerful legislation must alike be shattered upon the rock of such realities. II. STATUTORY LAW AND ITS OBSTRUCTIONS TO FREE JUDICIAL DECISION 12. Advantages and Disadvantages of Codification. The codification of the law actually in force becomes a necessity after the body of lawyers' law has increased beyond a certain point. Notwithstanding some unde- niable drawbacks, such codification seems to be advan- tageous on the whole. By summing up the entire course of legal development to date, it creates some sort of order out of the chaos of the law, which in the course of time tends to become an impenetrable wilderness even to the most skillful. It is true that the international interaction of legal scientific labor is thereby rendered impossible, such an influence as existed doubtless during the flowering period of the common law, when Germany, Holland, France, and Italy formed a single province from a 62 EHRLICH: FREEDOM OF DECISION [Cn. II literary as well as a legal point of view. For even so late a treatise as that of Savigny, in the early 1800s, was founded on the idea of a science of the civil law unhampered by national boundaries. Nevertheless, codification creates a single, firm basis for legal develop- ment and legal science within a nation. And it may be hoped that in the course of time this may break through its national limitations and become trans- formed into a general, comparative science of law, at least in the sense in which the work of the analytical school of Austin and Holland constitutes such a general science of law. Even in regard to the common law, however, it would have been worth doubting whether it was necessary or proper to go to the Corpus Juris for rules relating to legal institutions or legal problems about which the common law is silent (especially those originating sub- sequent to the Reception), and for that purpose to dabble in fictions and logical generalizations modeled after those of the common law, while rejecting the right of free judicial decision on principle. Now after the common law has everywhere been supplanted by codes, that question assumes a double importance. Are we to renounce all free judicial decision regarding these also? Is it to be our destiny for all future time to try to regulate life by fictions and logical generalizations? Government-formulated law signifies invariably a demand made by the State upon Society. It means that social development is to be subjected to the ends of the State. Therefore it is necessary, in order to justify the compulsion which the statute exerts upon social evolution, to show that such compulsion is abso- lutely unavoidable for the higher purposes of the State. Consequently, it is a fair question to ask whether the codification of the law may not be objectionable on this 12] CODIFICATION 63 ground alone, viz., that it enforces on human life the will of the State in a thousand instances, although fre- quently the State is not interested in the least that such should be the case. What we are here concerned about, however, is not merely restraint by statute, but restraint by a technical judicial method, which applies the statute to cases for which it contains no express directions. 13. Legal Technicalism. It is certain that one need not expect better or juster results from such technical decisions than from free ones. Generally speaking, it is undoubtedly much easiej to decide a definite case cor- rectly than to establish an abstract rule universally applicable for all imaginable cases; and surely it can hardly be maintained seriously that such a rule will invariably result in the fairest decision, even in those cases which nobody had thought of when the rule was made. As a matter of fact no such thing is attempted by the technical judicial method of decision; its goal is quite different. A rule is to be framed, not neces- sarily always just, but at least certain, that can be ascertained in advance and will afford protection against arbitrary and biased judgments. In order to attain this end, the judge is to be subjected, bound hand and foot, to a rule that determines all things in advance. If an inference may be drawn from the experience of four centuries during which this legal technicalism held undisputed sway, it would seem that this goal has never been reached, and that it can never be attained. In the countries where the technical method prevails, the decisions are no more certain, even by a hair's breadth, and the courts not a whit less arbitrary, than under the "jus civile" of the Romans or under the common law of Englishmen and Americans. Even the most ordin- ary interpretation of a statute, consisting in the discovery of the legislative intent, gives rise to so many doubts 64 EHRLICH: FREEDOM OF DECISION [CH. II that a man who wanted to misapply the law would have to be peculiarly inept in order to find the paper fence of the statute an obstacle. Really, no possible harm could be done if we renounced once for all our attempts at making the law certain and guaranteeing its unbiased administration by means of fictions and rules of con- struction. If the prevailing doctrine were really meant seriously, it would be necessary to overrule every motion of a party, whether the motion of plaintiff for leave to bring suit, or the motion of a defendant for leave to interpose a demurrer, a motion in the course of an action or a motion in an "ex parte" proceeding, unless an express provision could be shown in the statute directing the court to grant the motion. Such is said to have been the rule in Rome, according to the account given by Gaius (though quite unreliable), in the days when "legis actiones" were in vogue. Then every action had to abate that was not founded on a specific "lex." Not one of the modern codes takes this position. All of them admit at least analogies and rules of construction. According to these, it suffices if by the statute a similar motion would have to be granted, or even if the claim could be made to appear by construction to be in harmony with the law as declared. The prevail- ing doctrine justifies the application of a statute in cases which the legislator obviously never had in mind, by saying that the legislator, if he had thought of them, would have treated them as he treated similar cases, or as he treated those cases which serve as starting points for the work of logical construction. Every analogy, however, and every rule of construction implies (to use the expression of Gustav Riimelin) a "value judgment"; the implied assertion is always that by means of the analogy or the rule of construction 13] TECHNICALISM 65 a fair result may be obtained. No doubt that is correct, for otherwise one could hardly maintain that the legis- lator would have decided in the same way if he had thought of such cases. But if that is really the case, then the technical method of decision also leaves so much to the discretion of the judge that it affords prac- tically no advantage at all over freedom of decision. 14. Further Objections to the Technical Method. But how about the possibility of foreseeing what the decision of the court will be? In what cases is such foresight actually attained under the technical method? Appar- ently in those few cases only in which the law is so clear and definite that there is really no need of searching for it. In cases of this sort, however, the method of free decision would make no change, for it would come into play merely when there is no clear provision in the formulated law. There is good reason to claim that a better guaranty for certainty of the law than by the technical method may be found in a method of free decision -- bound only by judicial precedents, but not beyond that. Even to-day, a judge feels greater assur- ance when he can refer to a series of adjudications than when he has nothing but a construction of the statute which may at any time be upset by some other artist in construction. On still another ground, however, one may venture to call the method of legal technicalism nothing less than the sin against the Holy Spirit. For this method has obscured our eyes to the only true principle at the foundation not merely of a certain and unbiased adminis- tration of justice, but also of a justice dominated by great ideals : There is no guaranty of justice except the personality of the judge. By making legislation the center of our system of law, and by nothing else, has it been possible to hide for so long a period the recognition 66 EHRLICH: FREEDOM OF DECISION [Cn. II of the simple truth that the greatest task that can be given a man to discharge, Justice, requires a standard of mental and moral greatness far above the common average. Thus, and thus only, can people fail to see that for such a task a man is not fit merely because by examination and a little practice he has proved that he can, after a fashion, find his way through the sections of a code. Even mistakes have a logic of their own. When the code sections were made the guardians, so to speak, of legal certainty, other guardians had to be installed to see that the guardians did their duty. Thus came about the system of appellate courts, one above the other, and the baleful practice of having courts of plural judges, in which the several judicial individualities either neutralize each other or vanish in mere corporate responsibility. Such was the origin of the modern impersonal courts of the European continent, which are radically different from those of the Romans, and also from those of the English, among whom the first men of the nation count it the greatest of honors to be called upon the bench. 6 Anybody who realizes how with us an unproductive dialectical smartness is considered the highest proof of legal skill can hardly understand why the Romans had such a high regard for legal learning, and why they should describe it as "vera philosophia" and "divinarum atque humanarum rerum notitia." 15. Tendencies Opposed to Technicalism. And yet it is no compelling rule of law that has degraded the modern judge to his present position. It is true that the technical method of legal science dominates the application of the law; but like every other scientific It should be remembered that the office which in Rome is analogous to the English judge, is that of the consulting jurist delivering "responsa." It is true, however, that in England also the system of appeals and of judicial benches has taken root, although partly in a different fashion. 15] TREND AGAINST TECHNICALISM 67 doctrine it is bound to give way at any time before a better understanding of the truth. There was indeed a vigorous countercurrent noticeable in the scientific treatment of the law as early as the 17th century. The doctrine of the Law of Nature, which ruled the minds of lawyers throughout the 18th century, and has really never disappeared altogether, can, in part, be explained in no way but as a reaction against the technical method. In England, the classical country of free judicial decision, it has always been hard to understand what all this "Law of Nature" meant. 7 The teachers of the Law of Nature raised the question, quite seriously, which law was entitled to precedence w r here the law enacted by the State and the Law of Nature were in conflict. There were few who would have doubted that the judge was bound to decide accord- ing to the Law of Nature wherever the written law failed him. The doctrine of the Law of Nature, as such, has lost its power over the minds of lawyers, yet its seed has borne fruit, and German legal science, in many respects, is still unconsciously imbued with its spirit. This is true, in particular, with reference to the doc- trine of the non-compulsory effect of statutes. The rule that the written law cannot determine questions peculiarly within the province of scientific expert knowl- edge has beyond a doubt won back for the cause of free decision a good part of the lawyers' law. Among such non-compulsory parts of statutes are classed especially (in the opinion of many) provisions regarding the theory of the sources of law, and the method of applying the law. Both these subjects must therefore be left to free scientific discussion. Similarly, according to the 7 Bergbohm, "Jurisprudenz und Rechtsphilosophie," p. 331; Bryce, "Studies in History and Jurisprudence," vol. 2, p. 177. Holland, "Ele- ments of Jurisprudence," 8th ed. f p. viii, calls the German Law of Nature "jurisprudence in the air." 68 EHRLICH: FREEDOM OF DECISION [CH. II accepted view, definitions in a statute are in no way binding upon legal science, at least as regards private law. 8 ********* Let us here quote the following from the official notes to article 1 of the preliminary draft of the new Swiss Civil Code. 9 "... During a period not alto- gether passed away, people were influenced by the illusion that the court would always and in all cases apply the formulated law, if not according to the letter, according to its meaning and spirit. Yet this assump- tion is, in many cases, not verified. The proposal to recognize the real condition of things, as made in this draft, is likely to meet with the objection that the judge would thereby become too independent. He will, indeed, be more independent than he is now in those places where he is expected to derive absolutely every- thing from the statute, even if by the most questionable tricks of interpretation. But it shows a higher con- ception of his office not to expect of him such per- formances. He should have the right to recognize that there are in the statute 'lacunae' which cannot be filled by construction. After he has determined that fact he will render his decision, not on the assumption that the statute covers everything, but that the whole body of the law is sufficient for all cases, and will pre- sume the existence of such rule as he would consider [A number of paragraphs here omitted deal with special provisions in the Codes of France, Germany, and Switzerland. TRANSL.] [The text of this article is as follows: "The Civil Code applies to all cases for which it contains provisions, either according to its letter or its spirit. "If the Code contains no provision applicable to the question at issue, the judge shall decide according to customary law, and where that is also absent, according to recognized legal doctrine and science. "In the absence of all these sources, he shall render judgment in accord- ance with such rules as he would enact if he were the legislator." TRANSL.] 15] TREND AGAINST TECHNICALISM 69 proper in reference to the whole body of the law if he were legislator." 16. Approximation to Free Decision. These admir- able words describe exhaustively the task devolving upon the judge under the principle of freedom of decision. Notice the further statement that "Such is in reality the practice even now." This refers, to be sure, to the special character of the administration of law in Switzerland, where the adoption of the Roman law and the bureaucratization of the bench was never carried out completely. But the practice elsewhere is not different. It is significant, however, that judicial decisions are rarely based upon analogy or on the spirit of the statute. These are regarded as being so indefinite that thereby the door would be opened wide to freedom of decision. It seems as if the courts were actually afraid of their unaccustomed freedom. Far more fre- quently the decisions employ certain undefined and undefinable conceptions which have been adopted by legal writers and lawmakers, sometimes avowedly and more often unconsciously, for the purpose of affording an opportunity for freedom of decision, for example, such terms as "the nature of the subject-matter," "implied intent," "good faith," or the "custom of the trade." No other court, sitting in a jurisdiction where the technical method prevails, has succeeded in acquiring so much freedom as the Court of Cassation at Paris. To this circumstance we owe some of the most fruitful juridical ideas of the age. Among these must be counted liability for accident and the negligence of a stranger, the rules against unfair competition, the development of copyright, and the law of insurance. By the decisions of the Paris Court of Cassation so many new ideas have been infused into French civil law, statutes have been 70 EHRLICH: FREEDOM OF DECISION [CH. II interpreted so frequently in a manner deviating widely from the intention of the legislator, that one may prop- erly say: Whoever knows merely the statutory law of France has no conception of the law as it actually there exists. In Germany the former Hanseatic Supreme Court of Appeals at Liibeck, the Appellate Court of Commerce at Nuremberg, and subsequently the Imperial Supreme Court of Commerce (and the Imperial Court itself, at least in commercial cases, in which the courts have always been allowed to exercise a degree of freedom), have proven that German courts are also capable of elevated thought and creative ideas if they are allowed free play. The Austrian Supreme Court has a way of adhering to the words of the statute with scrupulous meticulosity, and rarely with beneficial results. Granting that its decisions have many excellent characteristics in other respects, yet it has become manifest that a preference for strict interpretation does not even assure the advan- tage of certainty. Words are extremely imperfect tools, and nobody has ever succeeded in mastering real things by means of mere words. How has it been possible, notwithstanding the many influences pushing in the direction of technical decision, that the administration of the law has so often been able to throw off its fetters? For one thing, law is not a rigid dogma, but a living power. The mere fact that a statute has been adopted does not prove-that it is in force, and from the intention of the legislator you can by no means infer how it may work out. The various civil codes consist in part of statutes proper, in part of codified lawyers' law. But no matter how nearly alike you may make the two externally, you will never succeed, for example, in giving the same force to the rule relating to the 16] COURTS OF FREE DECISION 71 retroactive power of performed conditions as to the pro- hibition of usurious contracts. Lawyers' law, if for no reason but that the State as such has no particular interest in its subject-matter, is always in essence an instruction imparted by "written reason," rather than a command. But even a statute proper is really effec- tive only by its indwelling force. If it cannot overcome the resistance of the environment it loses its vigor, is applied erroneously, or grows absolute. There is some consolation in the idea that the administration of law sometimes attains simple justice in a roundabout way when a statute blocks the straight road. At the same time it is not the business of legislation to compel it to take the roundabout road. III. CHARACTERISTICS OF THE PRINCIPLE OF FREE JUDICIAL DECISION 17. Free Decision Not Arbitrary. A modern judge who assumes it to be his duty always to base his deci- sions on an express statute naturally will ask what is to serve as foundation for the administration of justice if that of a statute is to be withdrawn. One might be tempted to reply simply that in every period of time there has existed a justice not hedged about by code sections. Such justice, however, is by no means arbitrary. As already emphasized at the opening of this essay, it grows out of the principles of juridical tradition. Every kind of freedom of decision starts with juridical tradition and tends toward what Stammler has called "correct law" ("Richtiges Recht"). The very peculiarity of the judicial office is the assump- tion that the judge's utterance represents, not his per- sonal opinion, but the law. And this law is found primarily in the legal records of the past, in statutes, in decisions of courts, in legal literature. No Roman 72 EHRLICH: FREEDOM OF DECISION [Cn. II jurist ever deviated farther from the traditional rules than he was compelled to do by necessity. Blackstone, in a famous passage of his Commentaries, speaking of the English common law, represents the English judge as only declaring, not as making, the rules of law. 10 Free decision is conservative, as every kind of freedom is; for freedom means responsibility, while restraint shifts responsibility upon other shoulders. 18. The Basis of Free Decision. No rule is just for all times. Every form of justice, like all formulated law, is the outcome of historical development. We have already pointed out that lawyers' law, the child of free decision, is composed of rules derived from the nature of social relations and changing as these change. The great mass of rules of decision are determined, at any given time, by the changing social conditions to which they are applied. Stammler seems to have found the right way of putting it; he refers to the story of Herodotus concerning the Medes, who, after their separation from the Assyrians, living without statutes, elected Dejoces their King, because in their contentions he had proven himself a just judge; then he adds: "The skillful judge whose decisions delighted the people, had understood well how to adjudicate newly arising issues on the basis of principles derived from traditional customs. For we may safely assume that there also such things existed as property, binding contracts, family authority, individual right of inheritance, etc., and that the question was how to maintain these prin- ciples in each particular controversy. It would be idle to imagine that he administered his function of arbitrator without any such basis of positive institutions." 19. Legal Growth as Affected by the Lawyers. Long ago von Biilow proved convincingly that all declaration l Blackstone's Commentaries (Cooley, 3d ed.), p. 69. 19] APPLICATION OF LAW CREATIVE 73 of the law, even if it aims to be simply application of law, is by its very nature creative. Every species of legal science, consciously or unconsciously, tends to progress through the formulated law beyond the formu- lated law. The difference between free decision and technical decision is therefore not so much that the former may go beyond the statute, but lies rather in the manner of doing so. For the technical method requires that its work of art be achieved only by means of certain devices of legal thinking from which no varia- tion must be permitted ; while free decision counts also upon the element of creative thought by great individual minds. One sees that the technical method is a child of the same spirit as the system of a collegiate judiciary, and the multiplicity of appeals. All these devices are intended to eliminate as far as possible the personality of the judge. That aim, however, will forever be futile. For each application of a general rule to a particular case is necessarily influenced by "the personality of the judge who makes it. Legal tradition itself, while a result of social processes, is at the same time the work of the men who labor at it. Similarly, this tradition is constantly being newly shaped and remodeled by those who continue such labors. No doubt the Roman law would show quite a different aspect if, for so much of it as has come down to us, not Ulpian and Paulus but Javolenus and Celsus had been the spokesmen. In the common law of to-day, no matter how completely it may be dominated by the technical method, every- body with the requisite knowledge can accurately dis- tinguish the component parts which as late as the 19th century have been introduced into the edifice by such great builders as Savigny, Puchta, Arndts, Vangerow, Bahr, Jhering, Windscheid, and Bekker. \ 74 EHRLICH: FREEDOM OF DECISION [CH. II 20. The Personality of the Judge. Thus the admin- istration of justice has always contained a personal element. In all ages, social, political and cultural move- ments have necessarily exerted an influence upon it; but whether any individual jurist yields more or less to such influences, whether he is more inclined in his "quae traditae sunt perseverare" or rather "ingenii qualitate et fiducia doctrinae plurima innovareconstituit," depends of course less on any theory of legal method than on his own personal temperament. The point is that this fact should not be tolerated as something unavoidable, but should be gladly welcomed. For the one important desideratum is that his personality must be great enough to be properly intrusted with such functions. The principle of free decision is really not concerned with the substance of the law, but with the proper selection of judges; in other words, it is the problem of how to organize the judiciary so as to give plenty of scope to strong personalities. Everything depends upon that. Until there is a change in that regard, all legal provisions will remain as ineffective as section 7 of the Austrian Civil Code. 11 It is fair to doubt, we must admit, whether the usual course of promotion within the bureaucracy is the best means of making the administration of justice proceed on grand lines. It is significant that the Paris Court of Cassation, the only court on the European con- tinent that regularly exercises the power of free decision (in fact though not in name), has attained this goal as 11 [The section of the Austrian Civil Code referred to reads: Section 7. "Where the case cannot be decided either according to the literal text or the natural meaning of a statute, regard shall be had to analogous provisions clearly contained in the statutes, and to the principles apply- ing to provisions regarding similar matters. If the case is still doubtful, it shall be decided after carefully collecting and considering all sur- rounding circumstances, according to the principles of natural justice." TRANSL.] PERSONALITY OF THE JUDGE 75 successor to the French Court of Parliament, of which it has been said that "though its members bought their places with money, yet it gave to France the best judges she has ever had." It is significant also that in Ger- many the only courts which sometimes have an oppor- tunity for free decision are the Courts of Commerce, which to some extent are placed outside of the regular bureaucratic hierarchy, or at least formerly were so placed. Assuredly these institutions are no proper models. Examples should rather be sought in Rome or in England, where the courts gather into their mem- bership the intellectual and social flower of the nation and where the most eminent men consider a seat on the bench the highest goal and the most dignified com- pletion of their life's work. The names of the great English judges, such as Lord Mansfield, Lord Eldon, Lord Bowen, or Sir George Jessel, are better known in England than almost any famous jurist is known on the Continent. No doubt it has happened more than once on the Continent that men of that caliber have been raised to the bench, but nobody knows of them outside a narrow circle of the initiated, and their fame does not survive their own group of associates. 12 ********* It would be unfair if we failed to recognize that there are further and perhaps better-founded reasons for the existing antipathy to free legal decision. One such reason may be found especially in traditional concep- tions regarding the proper limits of the functions of Government and the separation of powers. In the tendency to make the bureaucratic judge base his judicial opinion invariably on the letter of the statute we may find a good portion of the old-fashioned Liberal 12 [Some omitted paragraphs deal with special conditions in civil law countries. TRANSL.] 76 EHRLICH: FREEDOM OF DECISION [CH. II distrust of the Government; and on the other hand it will take a long time before the idea will be thoroughly familiar that the function of legislation does not extend to every form of lawmaking but is confined to the passing of express statutes. Those ways of thinking, however, really belong to a theory of the State which is already antiquated, although like every political theory it was the scientific expression of conditions historically developed. IV. THE TASKS AWAITING FREEDOM OF JUDICIAL DECISION 21. The Work of Legal Science. We may now cast a glance at the science of law, and consider what tasks will remain for it after technicalism has been supplanted by free decision'. First of all, it becomes plain that after this change there can be no further place for the traditional essay on rules of construction. The moment it is recognized that a statute provides only for what it provides, and that what is not so provided simply remains unprovided, there can be no further excuse for using a hairsplitting machine, or as it were, for squeezing decisions out of a statute with a hydraulic press. Many tears will not be shed over the decease of that misshapen bantling of our "reception" of Roman law. 13 Anybody can see that the basis of a decision ought to be that it is just, or that it is equitable, or that it is in accordance with the statute or legal tradition. Let us hope, however, that we may be approaching a time when nobody will be able to understand why a decision should be ren- dered for no reason than that somebody has written a book in which he construed the law to mean what the i* "[Rezeption" or "reception" refers to the adoption of the civil law, or Roman law as modified by mediaeval jurists in Germany and other countries of the Continent. TRANSL.J 21] PROVINCE OF LEGAL SCIENCE 77 decision says it means. To be sure, a great deal of respectable mental power has been expended upon these essays of the traditional kind but for what purpose? In Macaulay's phrase, one may move one's legs in the treadmill as well as on the high road; but on the road they carry us forward, while in the treadmill we remain in the same place. It is useless to inquire what roads legal science shall travel after it has turned its back on fruitless labors. The human mind is inexhaustible, and the number of unsolved problems in every field is infinite. It would be arrogance to play the prophet in such matters. But, in view of the amount of energy that is wasted in tread- mills of various kinds, one may be permitted to call attention to several attractive landscapes which may be reached by commodious highways. 22. The Practical Operation of the Law. Certain it is, first of all, that the primary task of legal science, to inquire into the meaning of legal rules, will retain its rank. Modern, civil codes require scientific inter- pretation more urgently than any other species of formulated law. They are themselves the result of legal science, and are capable to a much higher degree than ordinary legislation of being perfected, and developed by jurisprudence. The discovery of the hidden meaning of formulated or unformulated law, however, is by no means the whole of the task. A legal rule must be treated not like a rigid dogma but like living energy. After one has found the meaning of a legal provision, obviously he still has to show how it works. That, however, does not depend on its interpretation, but on its inherent force, the nature of the society for which it was made, and the character of those who apply it. It is the business of legal science to teach the law as it actually works. 78 EHRLICH: FREEDOM OF DECISION [Cn. II Whoever knows but the "intent of the legislator" is still far from knowing the law that is really in effect. In this sense the traditional, dogmatic conception of law may be contrasted with a dynamic conception. For the latter, the problem is not simply to know what a rule means, but how it lives and works, how it adapts itself to the different relations of life, how it is being circumvented and how it succeeds in 'frustrating cir- cumvention. Whoever assumes, as is done so com- monly by the traditional school as a matter of course, that the law works out precisely as the legislator intended, ignores the long distance separating the instrument from the performance and the performance from its consequences in all human affairs. Heretofore the historians of the law have been almost alone in inquiring how the law actually works; occasionally economists and specialists in commercial law have also done so, but to the systematic student of the law such questions have unfortunately, for the most part, seemed outside of his proper sphere. 14 Here we must turn first to the decisions of the courts. From these principally we may learn the "jus quod est," from them alone we can gather what rules of decision have actually entered into daily life, and how they have done so. But it is not enough to cite decisions in a text, or in notes, and to approve or condemn them according as they are deemed correct or otherwise. A legal decision is always the result of a number of factors influencing the judge; meaning and text of a rule is one of these factors, but not the only one. Every decision expresses some actually existing social movement; even H In my work "Das zwingende Recht und nichtzwingende Recht im burgerlichen Gesetzbuch fur das Deutsche Reich" I have tried to treat the German Civil Code in that manner. This, however, is par- ticularly difficult in regard to a system of law still in course of develop- ment. 22] OPERATION OF LEGAL RULES 79 the most abstruse scholastical reason, the most manifest misinterpretations or conscious perversions of law, at least help to show these facts as coefficients of social tendencies. One of the duties of legal science is to examine the origin, nature, effect, and value of the tenden- cies that become apparent in legal decisions, and thus to furnish a picture of what is going on in the administration of justice and what the causes thereof may be. 15 Next come the actual legal transactions as such, even when they have given no occasion for resort to courts or governmental agencies. So far as boards of trade, banks, factories and shops are concerned, we can extract some instruction from the literature of eco- nomics and commercial law; similarly, as regards the conditions of labor, from sociological writings such as have furnished the material for Lotmar's broadly conceived work. 16 The enormous mass of material piled up in the offices of notaries and recorders of deeds still waits for the investigator. How much might be garnered here, not merely from the economic but also the juristic standpoint, is sufficiently apparent from works like that of Bartsch on the Austrian law concerning the recording of titles to real property. How far in advance of the systematic lawyers are the legal historians in the scientific treatment of archives! As far as I can see, there is not, in all of legal literature, a single scientific work on the science of modern legal documents. That is why it is possible to dig through a whole library of works on testamentary succession, to find therein numbers of clever and sagacious rules of construction but not a word to show what sort of wills are commonly drawn at the present time. i* In my paper on "Die stillschweigende Willenserklarung," I have tried to make use of the decisions in this manner. i [SeeLotmar, "Der Arbeitsvertrag," 2 vols. Leipzig, 1902, 1908. TRANSL.] 80 EHRLICH: FREEDOM OF DECISION [CH. II 23. Legal Regulation and Actual Life. We must further inquire into the facts of daily life, apart from their legal aspect. We lawyers are always inclined to assume that our rule of decision is a faithful expression of how things are actually done, that a rule of law is also a rule of life as it is. But in reality these may be two very different things. In reality life creates primarily its own rules. How small is the influence of the law of family, as formulated in rules, on the actual conduct of family life; how different the interpretation and execution of contracts in actual business from the interpretation by the courts in the few cases in which a decision passes upon them! Learned Romanists reveal to us that what was in legal theory said to be the exclusive property of the "paterfamilias" was in reality held in common by his family, and that the "filiusfamilias," who according to the strict law had a status almost identical with that of a slave, had in reality a position entirely different, so great was sometimes, even in Rome, the difference between the archaizing rule of law and the rule of life. And we may be sure that to-day this difference is no less, considering that the rule of law is based in part on alien standards of decision, Roman or French, while the rule of life has grown out of native custom. Does anybody really believe that anywhere in Germany or Austria fathers actually do bestow marriage portions on their daughters in accordance with the rules of the Civil Code, or that vendors actually do make good the defects of their wares in the manner the law provides? It is no answer to say that these are matters of popular custom, not of law ; for both the duty of giving a marriage portion and the law of warranty for defects, as found in the much-lauded Roman law, arose themselves out of just such popular custom. In every healthy course 23] LEGAL RULES AND ACTUAL LIFE 81 of legal development, a good custom will become trans- formed into a rule of law, while a bad custom will be opposed by both legislation and the decisions of the courts; but for both purposes it is necessary first of all to know the custom. 17 However, unless one narrowly identifies all law with rules of decision, one will have to admit that such customs, being forms of organiza- tion of modern society, are undoubtedly of a jural nature, and the reason they are not enforced legally is simply that the courts are not governed, as they were in Rome, by native rules of decision, but for the most part by alien or antiquated ones. That, however, need not keep a lawyer from investigating them. And it would be worth while some day to make an attempt at delineating the law of family of the present day, meaning thereby the law according to which the mem- bers of families actually live, not the law according to which lawsuits regarding family quarrels are decided. Or one might undertake to show what property is actually like in woodland and meadow, field and pasture, instead of how it looks in the Civil Code. That, to be sure, would require not only great learning, especially of the historical sort, but also an extraordinary sense of realities. But, if it were done successfully, surely "the work would praise the master." For (to quote from Goethe's "Faust") "where'er you strike it, life is interesting." 17 In Rome, as elsewhere, neighbors were accustomed to consider each other's convenience; in cases of litigation between neighbors, the duties which were, according to such custom, mutually owing to them became the basis of judgment. Such was the origin of the rules enumerated in Windscheid's "Pandekten," vol. 1, 169, lines 1-8. To-day also neigh- bors are in the habit of considering each other's convenience in certain respects, but this custom is hardly ever utilized to arrive at a decision, simply because lawyers know nothing about it. Consequently it cannot develop into a rule of law. The limitations of property rights in favor of neighbors which are enumerated in Windscheid's "Pandekten," and which, having arisen out of Roman custom, became part of Roman law these, and these alone, every lawyer is supposed to know at least at the time of his examination. 82 EHRLICH: FREEDOM OF DECISION [Cn.II 24. Legal Science and the Courts. Yet there are still further problems of quite a different nature waiting for legal science to solve them. Whoever desires that we possess a body of creative decisions must of course desire also a creative science of law. Manifestly, the tasks of the theoretical writer and the practical lawyer are closely akin. The task of the modern jurist cannot be essentially different from that of the jurist in all past ages, and especially from that of the Roman jurist. It would be a great mistake to imagine that the theoreti- cal disputes of the Romans had to do with what were the traditional rules. Their discussions turned rather upon what would be the juster and more useful decision. As far back as Savigny and his immediate pupils, legal science has been called one of the sources of law, and ever since the celebrated paper by Jhering on "Unsere Auf- gabe" appeared, there has been no lack of voices calling for a creative science of law. Even the old civilian science was creative to a degree, although it did not by any means aim to be so. The law of possession, of agency, of contracts between absent parties, of agree- ments in favor of third parties, of unjust enrichment and many other subjects, may very properly be called the products of civilian science. It is true that the desire to have an authority for everything, even where the authorities were obstinately silent, created obstacles at every step. What pitiful citations Jhering deemed it necessary to furnish in order to make palatable to himself and his contemporaries one of his cleverest ideas, the theory of negative interest in a contract! It is certainly not the business of legal science to predigest for the Court in the traditional manner of civilistic essays the decision of any case that might possibly come before it. In most cases the Court will be much better able to decide an actual case than any 24] COURTS AND LEGAL SCIENCE 83 theoretical author can do in advance. This is a matter in which science must learn from the actual administra- tion of the law, not the courts from science. Sometimes, however, the conditions are of the opposite character. This is so especially when the courts misun- derstand the great social, economic or political problems that may be involved in cases coming before them, and still more so where they are confronted with an entirely new subject which cannot be dealt with except by extensive investigations such as no man can under- take who is immersed in the ever-changing business of practical life. It would be deplorable if a legal science could exist without mirroring the great move- ments and intellectual currents that rouse and animate our times. 25. Development of the Law of Evidence. One of the most important tasks of this sort to which legal science must address itself in the future is the creation of an adequate law of evidence. In former centuries this matter was frequently treated by the jurists, and many valuable results of scientific investigations became embodied in the ancient codes of procedure. In this field, however, more than anywhere else, the fixation of the law in codes and statutes seems to have worked badly. It led to the formal or "legal" theory of proof, so called, and gradually imparted to the law of evidence a rigidity which became at last insupportable. The consequence of this was the substitution of the so-called "free weighing of evidence" for the formal theory, abolish- ing not merely the formal requirements of proof but all rules of evidence, a result which apparently Glaser, the principal advocate in Austria of this reform, had by no means intended. 18 i See Glaser, "Zur Kritik des Zeugenbeweises," Gerichtssaal, vol. 33; Glaser, "Beitrage zur Lehre vom Beweis." 84 EHRLICH: FREEDOM OF DECISION [CH. II Such was the origin of the completely anarchical conditions with which we are still contending in the law of evidence. It shows what power mere catch-phrases may exercise over the human mind, for to argue for freedom of legal decision in general is commonly con- sidered highly dangerous, while in this particular field of evidence the total absence not merely of legal limita- tions but of scientific orderliness is accepted as a matter of course. This is true to such an extent that the reversal of a judgment on appeal may be ordered for the most trifling error of law, and yet not for the greatest error in the weighing of evidence. As if under some circumstances a neglect of rational rules for the weighing of evidence might not have more serious consequences than a judgment not precisely in accord with some statutory provision of substantive law. The data collected by the indefatigable Hans Gross would alone be sufficient to furnish material for erecting the edifice of an adequate law of evidence. This, however, ought not to be fixed by statute but developed by jurists and judges, after the manner of the English law of evidence. 26. Conclusion. It is thus apparent enough that there will be no lack of subjects for investigation for legal science in its quest for more modern things than are to be found in the traditional fields of inquiry. And we may well expect, if lawyers in the future seriously turn their attention to problems of this kind, that the prevalent popular notion of the jurist as a subtle, acute dialectician will have to be superseded by a different ideal. There will be no lament over this change of ideal. Of all the gifts of the human intellect, logical acumen is the least fruitful. There is profound wisdom in the fact that German legend frequently portrays the devil as a sharp dialectician. 1] GMELIN: SOCIOLOGICAL METHOD 85 CHAPTER III DIALECTICISM AND TECHNICALITY: THE NEED OF SOCIOLOGICAL METHOD BY JOHANN GEORG GMELIN l I. ON THE ART OF ADMINISTERING JUSTICE 1. CODES AND JUDICIAL FUNCTIONS. 2. STATUTES AND JUSTICE. 3. THE DEMAND FOR REFORM. 4. THE WRITINGS OF ERNST FUCHS. 5. CRITICISM OF SUPREME COURT DECISIONS. 6. MORE DECISIONS CRITICIZED. 7. A FALSE METHOD. 8. THE BETTER METHOD. 9. CONCLUSION. 1 [Justice of the Court of Appeals at Stuttgart. This translation is of his collection of essays under the original title "Quousque" (omitting the first and third essays), Hanover, 1910, Helwingsche Verlagsbuch- handlung. The translation is by Ernest Bruncken.} AUTHOR'S PREFACE The [four] papers here collected [two translated] are intended, in connection with the writings of Ernst Fuchs, of Karlsruhe, to call atten- tion to some of the rocks toward which our administration of justice is steering on account of its excessive formalism and the scholastic and dialectical method on which that formalism is based. How long is this idolatry of technicalities to last? Where will it carry us? What can we put in its place? These are questions which every judge ought to ponder. The first two publications exhibit the small beginnings of what is now with me a settled conviction. Gradually these grew to such an extent that in the fourth paper, a sketch of which was originally pub- lished in "Wiirttembergische Zeitschrift fur Rechtspflege und Verwal- tung," 1910, pp. 1 et seq., I could make the attempt to set forth the positive side of the sociological method. The third essay, on the "Lay Element in the Criminal Courts" is somewhat loosely connected with the general subject, yet here also the principal idea is the same as in the other papers, to wit: antagonism to the extreme technicalization of justice. There is much still to be done in the way of studying the more profound aspects of the sociological method, and there is much material still to be collected. Let there be many earnest collaborators in the work! GMELIN. STUTTGART, end of January, 1910. 86 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill II. ON THE SOCIOLOGICAL METHOD IN THE ADMINIS- TRATION OF JUSTICE 10. LAW AND SOCIOLOGY. 11. MERE LOGICAL DEDUCTION NOT A SUFFICIENT METHOD. 12. THE SOCIOLOGICAL METHOD. 13. CRITICISM OF SUPREME COURT DECISIONS. 14. ANALYSIS OF CRITICISMS MADE BY FUCHS. 15. FURTHER CRITICISMS BY FUCHS. 16. A DIFFICULT CASE. 17. FURTHER CRITICISMS ANALYZED. 18. THE SUBJECT CONTINUED. 19. THE SUPREME COURT SOMETIMES SOCIOLOGICALLY COR- RECT. 20. INDIVIDUAL ERRORS OR FALSE METHOD? 21. THE PREVAILING METHOD NOT WORKING PROPERLY. 22. THE SENSE OF JUSTICE. 23. THE THEORETICAL CONCEPTION OF JUDGMENT. 24. THE BALANCING OF INTERESTS. 25. THE NEED OF A CHANGE IN ATTITUDE. 26. OBJECTIONS TO THE NEW METHOD. 27. SOME OBJECTIONS REFUTED. 28. SOME OPINIONS REGARDING THE NEW METHOD. 29. VIEWS OF DURINGER. 30. VIEWS OF OTHER LAW WRITERS. 31. THE SUBJECT CONTINUED. 32. CONCLUSION. I. ON THE ART OF ADMINISTERING JUSTICE 2 1. Codes and Judicial Functions. When on Jan- uary 1, 1900, throughout those parts of Germany where the Roman civil law had prevailed, the Roman law ceased to be in force, and the controversies raging around it disappeared together with the local statutes supple- menting it,*which frequently were just as hard to inter- pret, a good many people may have imagined that a new epoch had begun, an epoch in which a code, easy to use, would facilitate the decision of law cases which practical life produces in ever novel forms, by means of a few This discussion will be confined to the administration of law in civil cases. 1] BOOK-LORE AND JUDGES 87 easily framed pronouncements intelligible to everybody. That hope has not been fulfilled. The number of contro- versies is legion. The necessary tools of the practitioner include thick commentaries and a flood of published decisions by the highest courts that is rising in an actually menacing manner. 3 This overproduction of book-lore can hardly be con- sidered a blessing. What is needed for the administra- tion of the law is not a dead learning, nor a cult of the uletter, nor excessive reverence for precedent. A reason- able administration of justice depends on paying due regard to actual life and its circumstances. It requires a ^nowledge of the ideas present in the minds of litigants, presupposes a deep study of the practical ends pursued by individuals in their struggles for existence. It demands j^knowledge of the manner of expression and the educational status of the average person, as well as of the manner in which he is likely to conceive right and wrong. ^Finally it requires some knowledge of the standard by which individuals measure themselves and others in their business and legal relations. About all this the judge will be able to glean information and instruction from com- mentaries and precedents only in a limited measure. He whose duty it is to administer justice must call to his aid the power of observation and the experience of life that is gained by continuous and open-minded observation. He should be conscious that what he is 8 The excellent commentary by Staudinger deals with 2385 sections of the Civil Code and 218 sections of the supplementary act of intro- duction. The official edition of the decisions of the Imperial Supreme Court starts its volume 44 after January 1, 1900, and up to this time has added already 26 additional volumes. Counting 450 pages to an average volume, there are 11,700 pages which, according to present day notions, every judge must have read. Add to these the collections of decisions in JW, in "Recht," and in many other periodicals. The well- known commentaries of Gaupp-Stein on the Code of Civil Procedure and Staub-Stranz on the Commercial Code each have about 2,040 pages in their latest editions. 88 GMELIN: SOCIOLOGICAL METHOD [CH.III called upon to oppose to the will of individuals as the will of the State, i.e. the will of the community, must in no case be in reality opposed to the true will of such community. 4 Let him bear in mind that each legal con- troversy is caused, as one might say, by a morbid con- dition. Before his tribunal appears a section of human life that has been thrown into disorder, and it is his busi- ness to rearrange it. Then, like the truly wise physician, he will first of all try to find how he may help those who turn to him in confidence. 5 i^The judge ought to perform his duty not with his head merely but also with his heart ; he must exercise his im- agination to place himself vividly into the circumstances of the parties appearing in the various tragedies and come- dies on his docket, so that he may realize how they felt when they acted as they did, what ends they may have pursued, and whether such pursuit can be held blameless when considered with a view to the general welfare. Further, he must make clear in his mind what the parties, from their subjective points of view, expect from the government that is to give them what is their due, and whether such expectations are in accord with a true sense of justice or based on unfounded assumptions regarding the nature of their rights. And finally, the IJtfdge is to point out the true direction of the sense of justice implanted in all of us, like a magnetic needle, so to speak. True justice cannot be found in cold, logical ratiocinations, nor by a wisdom garnered in dusty books. If it is properly to be administered, the heart will have to be allowed a voice by assisting critical reason and con- trolling the inferences logic would draw from the statute, Jhering, "Law as a Means to an End," page 220 [in this Series]. The judge, in pronouncing a judgment, really performs an act. In all practical relations it is not sufficient to know what the facts are, but it is necessary to do something regarding them. (Jhering, "Zweck im Recht," vol. 2, p. 47.) 1] BOOK-LORE AND JUDGES 89 mitigating their harshness as far as that can be recon- ciled with the law as it is written, and harmonizing them with the demands of actual life. Administration of justice is "ars aequi et boni," as was said by the Romans more than eighteen hundred years ago. The judge who would think and act rightly in his function of rendering judgment must be able, as far as inelastic provisions of the statute do not prevent him, to discover in the law and make effective that which he himself, if placed in the situation of the parties, would feel to be right and just. 2. Statutes and Justice. Theremay be an objection to this effect: we have no use for such doctrine. It means to put subjective feeling above law. Arbitrary judgment would rule in place of law, and that is precisely what a liti- gant will tolerate least of all. If such execrable principles were followed, insupportable uncertainty of law would be the result. Perhaps somebody might refer to Gustav Riimelin, who says in an address on the idea of justice: 6 "No doubt the ideal of justice would be to consider and decide each case requiring the intervention of public authority by itself, in the light of all the surrounding special circumstances and characteristics. For each case is of a specific, individual nature. Not one is pre- cisely like some other and therefore capable of being subsumed under some previously established rule with infallible certainty. If we were to imagine to ourselves a divine administration of justice, we should not doubt that such would be its procedure. It would not need a collection of general rules. But,"- - Riimelin continues, "this ideal is entirely unattainable for human purposes, and therefore is to be rejected." Nor do I propose to claim for the German j udge any such godlike authority. For one thing, one may rest assured that the 2385 sections of the Civil Code, together with 1048 "Reden und Aufsatze," new series (1881), p. 197. 90 GMELIN: SOCIOLOGICAL METHOD [CH.III of the Code of Civil Procedure and 905 of the Commercial Code, and thousands upon thousands of sections in other statutes, are a sufficient barrier against the arbitrariness of German judges in all ordinary cases at least! Yet, it would seem to appear with sufficiency from the textbooks, commentaries, and collections of deci- sions, that notwithstanding the plenitude of positive statutes, the current of ever-changing life produces day by Ittay cases that do not permit a direct or unquestionable application of a statutory provision. For it is the exclusive purpose of all these books, by the side of the positive statutes, to formulate additional maxims and principles not to be found in the words of any statute, to deduce from the written text new rules, supple- mentary rules, exceptions, and thus to guide us to that correct, practical administration of justice which is the goal of all legal science. Whether the law that has thus been derived from positive statutes by means of inter- pretation and maxims or principles believed to be true, and maintained as such, is really calculated to promote and increase the rule of justice, must be tested in the last analysis by such administration of justice. 3. The Demand for Reforms. Because the members of the German judiciary cherish a tradition of great reverence for commentaries and collections of decisions, they have on the whole rested in the quiet belief that everything is in the best of order ; that under the guid- ance of the new code, legal science and the art of inter- pretation are flourishing and promise to do so in even greater measure in the future. Now and then, some prac- titioner may have been troubled by a scruple whether one could speak of a healthy condition when questions simple on their face, such as the daily grist of the courts produces them, cannot be solved except by a vast ex- penditure of reasoning and analysis of prior decisions and 3] THE DEMAND FOR REFORMS 91 the contradictory opinions of authors. We may use as illustrations questions arising with regard to the nature of actions for rescission of contracts of sale and the neces- sity of specific demand for acceptance of the goods by the vendor. In regard to the latter point, even Staub, who is ordinarily very practical, advocated a formal demand, 7 but subsequently 8 the Imperial Supreme Court decided in the way which alone has practical sense, just as it has done regarding the true nature of the action for rescis- sion. 9 However, when we try to see what the result of the contest raging about these questions really amounts to, all we can say after we have drawn the kernel out of the chestnut is this: to require, in cases of rescission, that the fact of rescission must first be established in the judgment before the legal consequences of such an act can be enforced must needs force us into useless, nugatory and therefore objectionable circumlocution. The second controversy would never have arisen at all if the question had been asked whether there could be any sense in com- pelling an honest vendor, whose vendee has definitely refused to accept the goods, to make a further demand and thereby expose himself to being snubbed. For according to the feeling among business men the vendee might well object to having his definite declaration of intention treated as if he had not meant it. As a matter of fact, the reasons given in the Supreme Court decisions on these two questions amount to nothing more than a statement of the points given above. 10 At ' "Kommentar zum HGB," 6th and 7th ed., notes 75 and 92 in the excursus regarding section 374. 8 RGZ 51, p. 350, and passim. RGZ 58, p. 424. ' RGZ 51, p. 350, puts the matter very pertinently by saying that "we cannot assume that in legal intercourse purposeless and superfluous acts are required." In the same volume it is held that a clerk who has been discharged without cause need not expressly declare his willingness to serve. (Romer, in DJZ (1903), p. 340.) 92 GM ELI N: SOCIOLOGICAL METHOD [CH.III least these two points are the only ones of practical importance. All the rest is very learned, but superfluous, all the more superfluous because nobody can doubt that from all these so-called scientific reasons the oppo- site conclusion might have been drawn quite as well. As we said above, for some time it has happened now and then that some judge began to doubt, in view of this and other cases, whether we had really touched such glorious heights of perfection. Then a champion arose to gather up the scattered doubts, to condense and inten- sify them, and in eloquent language to announce as the result of acute critical analysis something like the following : "There is something wrong about our entire system. The judgments rendered by our courts are founded on a method of scholastic formalism which, in the last analysis, is caused by an erroneous method of training in school and university. The true kernel of the judicial function, which should consist of a balancing of the interests of the contending parties in other words, the sociological fac- tor is lost sight of or at best admitted in a shamefaced manner as a trifling auxiliary. We must see to it that l "Schreibjustiz und Richterkonigtum"; "Recht und Wahrheit in unserer heutigen Justiz." See also: "Holdheim's Monatsschrift," 1908, p. 161 et seq., 1909, p. 29 (now inserted in the work "Gemeinschadlich- keit der konstruktiven Jurisprudenz," (vide infra); "Wiirttembergische Zeitschrift fur Recht und Verwaltung," 1909, p. 1 et seq. 1J It seems at bottom self-evident that criticisms of this kind must be directed principally against the highest court in Germany. As things are, the decisions in the lower courts are to a great extent dependent on those of the Imperial Court. Nobody will deny, therefore, that consist- ent errors, if they can be proven in the decisions of the Imperial Supreme Court , will also be found in those of the lower courts. 94 GMELIN: SOCIOLOGICAL METHOD [CH.III to be avoided. Even recently, however, one may find in a Supreme Court case 13 a single sentence contain- ing 121 words. To insert into a decision long cita- tions does lighten the labors of future legal authors, but strictly such quotations are not a part of the business of the court, which should keep in mind first of all the convenience of the litigants. The dignity of courts requires that their opinions, which in effect are the com- mands of the State, shall be pronounced with decision and not bear on their face the vestiges of painful mental labor. Before what the court has to say is given publicity, all attacks of the "maladie de doute" must have been cured. To show to the parties that the court had to struggle with doubts had better be avoided. In some cases it may be very profitable to dig into the history of the origin of the law, but ordinarily that sort of toil need not be paraded in public. In the field of private law a large part of the contro- versies have no particular scientific interest. The full quorum of^the Imperial Supreme Court uses ten printed pages to discuss the question 14 whether an action abates when a party dies after a judgment in appeal has been served upon him, but before he has moved for a revision and the party is still represented by the attorney of record in the appellate court. That might well have been decided and the reasons stated in a few words. In a case like this, as in many other cases relating to practice, the decisive thing is not some scientific reason but the convenience of daily life. Arguments based on scientific grounds but losing sight of this practical consideration will have to be rejected because they are not applicable and therefore incorrect. For instance, 15 " RGZ 65, p. 318. RGZ 68, pp. 247-257. RGZ 16, p. 395. The two cases next following have not been dis- cussed by Fuchs. 5] EXCESSES OF FORMALISM 95 the proposition maintained by the Supreme Court in another decision, according to which the possession of a document containing material evidence can be proven only by producing the document, and not by witnesses, seems to me to have no practical value, although the commentaries go on upholding it. Why should I not be permitted to prove by witnesses that my opponent is not telling the truth when he swears that he does not have the document; and after that has been established, why should not a witness be heard under oath to tell what the document contained? Further, it might be interesting to know whether any court ever required a party who at the first oral hearing refused to be sworn, to take the oath afterward, merely in order that such party, who according to his own declaration cannot take the oath, may have an opportunity to make up his mind whether he really cannot take that oath? 16 And what, finally, is the real, practical substance of that eminently "scientific" question, the "contingent counterclaim," except the recognition of the utter absurdity of deciding an action in such a manner as to make a new lawsuit the unavoidable consequence? 17 The entire subject of service of papers, as contained in the Code of Civil Procedure, is distinguished from the corresponding provisions everywhere else (as, for instance, in the acts regarding the industrial and commercial courts) by absurdities and senseless formalism, causing the loss of many a good case at the expense of parties. Decisions on such points have no real scientific interest ; they are a treadmill toil which has been imposed on the courts by defective legislation. According to Gaupp-Stein, note I, 2, to sect. 464, the provisions of sect. 464, par. 2, of the Civil Code apply only where the court has imposed the oath upon the party. " This agrees with Gaupp-Stein, note 2, to 300 ZPO. 96 GMELIN: SOCIOLOGICAL METHOD [CH.III 6. More Decisions Criticized. In the field of private substantive law we may furnish the following illustra- tions : In another case, 18 we find a decision that the Civil Code 19 cannot be invoked in favor of the family, the father of which was drowned by falling into an insufficiently guarded stream which ran through a village. On this decision one may comment to the effect that the number of beneficiaries in contemplation ought not indeed to be extended too far, for if that were done perhaps even the State might sue for damages because it lost a citizen. Yet I am unable to see what there is to prevent the court from holding that those members of the family who were entitled to support by the deceased were entitled to the benefit of the code provision, when the penal provi- sions 20 of the concurrent Penal Code were enacted for that purpose. Surely the highest court in the German Empire may claim authority sufficient to declare this to be law on its own responsibility. That would be a great deal more satisfactory than its hiding behind the narrowest con- struction of the letter of the statute. The same criticism is true of the decision found in still another case. 21 There the mother of a girl who had, at her own request, been killed by her lover and been buried in the "suicide corner" of the cemetery at Diissel- dorf, demanded reimbursement out of the estate of the lover for the cost of transferring the girl's body to Berlin. The court denied the claim. Here is an issue between the heart of a mother and the purse of a mur- derer. Was it necessary to save the latter? Absolutely inhuman! this is an expression I used regarding this case before I knew of the identical is RGZ 64, p. 344. i BOB 823, par. 2. " Sec. 367, subs. 12. RGZ 06, p. 305. 6] EXCESSES OF FORMALISM 97 criticism by Fuchs 22 it seems to me absolutely inhuman, where the judge, called in to draw a will and rinding the testatrix in a paralyzed condition, is required, in order to comply with the letter of the statute, to have the dying person make an express declaration that she is unable to write. 23 7. A False Method. Enough of this! 24 Let us ask: What profiteth, in such cases, an intimate acquaintance with all the commentaries, monographs, and annotations of the statutes? Are not these all very simple questions which, as it happens, the statutes have not expressly provided for, but for which anybody can find the answer in his own good sense in order to realize "the law that is born with us," which we are sorry to say, in the cases cited, is not the law as laid down by the Imperial Supreme Court? And unfortunately it is true that these three "anti- sociological" decisions may be the worst but are by no means the only ones that give evidence of the existence of a false system, a formalistic, narrow-minded method of interpretation, which is satisfied when the letter of the law has been applied to cases for which according to general human feeling it is not intended. Fuchs is right when he says that again and again we meet with judicial decisions that are far removed from that which a mind not sophisticated by scholastic argumentation would deem just and proper. If the method in which we, who have grown up under a formalistic training, have learned to find the only salvation, and regarding which we are apt to forget "Holdheim's Monatsschrift," 1909, p. 52, col. 1. RGZ 69, p. 79. In passing I wish to state that I substantially agree with the criticisms expressed by Fuchs ("Recht und Wahrheit" pp. 25-88) rela- tive, among others, to the following decisions: JW 1907, p. 301, no. 3; RGZ 65, no. 16; 66, nos. 14. 50. 62, 67. 98 GMELIN: SOCIOLOGICAL METHOD [CH.III that by logic we can guarantee the formal correctness of procedure but never the correctness of the results 25 26 if that method leads to such unfortunate results, why, then, something else must be substituted for it. And would it really be arrogant and worthy of condemnation if a German judge should remember his sense of justice and emphasize even in express words what he I believes to be just and equitable in the case to be decided, and then proceed to show that what he has thus found Ito be just is really in harmony with the established law? For the law has in its favor the presumption of being reasonable, 27 and according to Thol the statute maybe more intelligent than the legislator. 8. The Better Method. With reference to the letter of the statute, the law also should be interpreted in the way in which, according to the Civil Code, 28 private declarations are to be interpreted. Where we are dealing with principles which have themselves been produced by scientific deduction from the statutes, we should never forget that such principles are not dogmas. The matter was recently put very aptly by Max Riimelin. 29 He says: "We shall incline easiest toward declining an inference from the mere letter in those cases where the statute itself, by provisions regarding other interests to be considered, shows that our inference is wrong; in such cases we are still within the field of textual interpretation. However, we ought not to stop there. Whenever important considerations demand it, we must Sigwart, "Logik," vol. 1, sect. 2. The most frequent error involved in this method is that we operate with the "argumentum a contrario" where we should draw a conclusion by analogy, or the opposite, as is shown by Fuchs in a great many examples. 27 Wach, "Handbuch des Zivilprozesses," vol. l.page 258. BGB, 133. 29 In his very remarkable academic address of November, 1908, on "Das neue schweizerische Zivilgesetzbuch und seine Bedeutung fur uns." (Tubingen, 1908, Mohr, p. 31.) 8] A BETTER METHOD NEEDED 99 fall back on the presumption that the legislator meant to be reasonable, and could not have intended an absurd decision. The more sensitive and fine a feeling for justice is evolved, the less shall we be satisfied with decisions not evidently right on the merits. When the law has become highly developed we may even arrive at this rule of \i interpretation, that disputes which had never been con- j templated by the legislator, especially such as had never J arisen in practice before the statute was made, cannotv in cases of doubt, be construed as covered by the expres^ sions of the text." I do not believe that there is danger of impairing the certainty of the administration of the law by greater emphasis being laid on the sense of justice, in the way advocated here. I am rather inclined to believe that our administration of justice will be rejuvenated thereby. Excessive formalism must go, and for it must be substi-; tuted a more natural conception that will harmonize with the actual conditions of social life, so as to insist consciously upon the practical needs dictated by our sense of justice. An alluring task would be to discuss the question whether the preparation offered by our schools may not need reforming. However, from that I must refrain. I should say that all conversant with existing conditions are agreed that there is such need, and they also agree, probably, that the legal profession whose members are so often charged with being strangers to real life, would be the greatest gainer from a reform that would put training for practical thought and action in place of mere formal education of the reasoning faculty. We should wish that the law student at the university might be enabled to avoid mere narrow specialization and could come into touch as much as possible with other branches of knowledge. 100 GMELIN: SOCIOLOGICAL METHOD [Cn.111 9. Conclusion. In recapitulation, we may say this: There is good reason why discussions have recently arisen regarding the art of administering justice. In part, at least, that art is still far removed from the ideal I pro- posed at the beginning of this paper. What we judges require in the practice of our daily labors is not merely a logical elaboration of the legal matters submitted to us in each case, but an energetic progress toward the goal ^realizing justice on the foundations of positive law. We need a vivid understanding of the facts, 30 a sympa- thetic treatment of the human destinies that are passing before our eyes. We must strive to penetrate into the needs of the parties who come before the judge as patients come before the physician, so that we may not offer them the stone of bald reasoning but the bread of sympathetic relief. Let us break with the habit of using our decisions to parade learned disquisitions, expressed in diffuse verbiage incomprehensible to the layman! Much would be gained if the writers of the million or so opinions accompanying judgments rendered annually in the German Empire were all firmly agreed to shun all scholastic subtleties, artificial deductions and forced constructions. They might well take for their motto the lines of Goethe: "Good sense and honest judgment will With little art expound themselves." A determination to follow such principles will take the German judiciary a good deal farther than all the pretended learning they can infuse into their labors. *> That is why the ability of a judge shows . itself nowhere more plainly than in the manner in which he handles the facts and puts ques- tions to the witnesses. 10] LAW AND SOCIOLOGY 101 II. ON THE SOCIOLOGICAL METHOD IN THE ADMINISTRATION OF JUSTICE 31 "What we are striving for is that the courts may find the right judgment on the merits by practical sense and true comprehension of the facts, instead of the correct logical deduction by the help of scholastic subtleties." Ernst Fuchs, "Wiirttembergische Zeitung filr Rechtspflege und Verwaltung," 1909, p. 5. 10. Law and Sociology. Our first question shall be: Are we justified in claiming that there is a modern ten- dency in the law, so markedly distinct by its character- istics from what has been customary, that we are able and compelled to attribute to it independent importance and a specific appellation? As a matter of fact I do believe that the social ideas of our time, and the new science of sociology built up on them, have made their way even into that most con- servative of all provinces of intellectual activity, the law. At the present time, the method of legal science is, on the whole, that of the system-builder, and the method of administering the law is that of enforcing a statute, if I may use that expression. All effort is directed toward "bringing the case within the statute," in accordance with the authority of the State. In keeping with this method, we are tracking the expressed intention of the legislator into its most remote hiding-places. 32 And when that has been done we apply, by a chain of deduc- tions, the rules that may be plainly in existence, or if 31 I received the impetus to write this essay from a request by the editor of the "Wiirttembergische Zeitschrift fiir Rechtspflege und Verwaltung," to review the book by Ernst Fuchs, entitled "Die Gemein- gefahrlichkeit der konstruktiven Jurisprudenz" (Karlsruhe, 1909; Braun). From this review (in the year 1910, pp. 1 et seq.) the present paper has been evolved. The above book will hereafter be cited as "G," followed by the page numbers. The work by the same author, "Recht und Wahr- heit in der heutigen Justiz" (Berlin, 1908, Heyman), will be cited as "R&W," followed by the page numbers. "All that is needed now is to put the draftsmen on oath to testify what they had in mind, or what they would have thought about a par- ticular case if they had thought of it at all." ("G" 11.) 102 GM ELI N: SOCIOLOGICAL METHOD [CH.III necessary discovered in the dialectic manner, to the facts of the case, with the implied assumption that the State requires the application of the statute equally to every state of facts that can possibly arise. Regarding these principles we must say generally, first of all, that they cannot but lead to a mere formalistic administration of the law, so that we must needs look for some other source from which to derive the means of supplementing and vivifying our labors. Such a source we may find, agreeably to certain modern conceptions, in the recognition that the kernel of all legal contentions is a dispute regarding certain interests which the law protects, be it interests of a pecuniary, be it such of an ideal nature. Accordingly, the task of judicial determin- jation should be to understand the merits of such conflicts of interests, to find out their essential nature, and to recon- )cile them by balancing them against each other in the manner of an unbiased arbitrator who stands above the parties and bears in mind both the advantage of the contending individuals and the general welfare. Indi- vidual advantage, because that is what the parties are seeking to protect; the general welfare, because that enters into the problem not merely on account of the interest the public has in the certainty of justice, i.e. in the equal adjudication of equal cases, but also because the public is interested in having each case determined justly. For each case must be considered the type of a series of similar cases. The method here outlined, b> which it is sought to substitute for the primary import ance of logical concepts the importance of a balancing of real interests, we may call the sociological method Sociology, to be sure, is a name given to a science which attempts to investigate the laws by which society exists and the various social groups are related to each other. Yet we need not hesitate to apply the name to a scientific 10] LAW AND SOCIOLOGY 103 method which finds its models in the science of sociology, and which, in the field of private law, deals with the investigation of contending interests. For are not these, to a great extent, the interests of struggling social groups? 33 The sociological science of private law, then, would be that science which deals with those legal interests falling under the domain of private law, and with the correlative values of such interests. Sociological admin- istration of justice w r ould be that manner of administering the law which, in pursuance of the above idea, lays the greatest stress in adjudicating cases on the importance of the real interests involved, and tries to arrive at the correct decision from this point of view. It does not follow from this, however, either that the positive statute is to be disregarded or that systematic legal science, which is well pictured as the stout backbone of the law, need be thrown aside. Yet if it is true that in consequence of the fact that the sociological method ascribes greater importance to the real interests involved in each separate case, and aims primarily at a decision on the basis of the real merits, it is likely that the results of adjudication, taken as a whole, will show a different aspect. The ideal method of administering justice, as has been aptly remarked by Sinzheimer, 34 will at last be attained by a mutual supplementation and interpenetra- tion of systematic legal science and the fundamental ideas of sociology. In doing so sociology needs syste- matic science, which prepares the proper juridical form; but on the other hand we must acknowledge that pure systematic jurisprudence, without the assistance of sociological principles, does not suffice to enlighten us ' Employers and employed, producers and consumers (or vendors and purchasers) , lessors and lessees, those seeking employment and the agents who try to procure" it, and so forth. "Die soziologische Methode in der Privatrechtswissenschaft," Munich, 1909, Rieger. 104 GMELIN: SOCIOLOGICAL METHOD [CH. Ill regarding the actual life which is the subject-matter of legal activities. For that reason mere systematic jurisprudence by itself should no longer be recognized as a proper basis for the administration of justice. 11. Mere Logical Deduction not a Sufficient Method. We shall have to admit without qualification that in the past also consideration of the real merits of a cause and a balancing of material as well as legal interests has not been altogether neglected either by legal science or legal prac- tice. Yet a more conscious attempt is now being made to gain for this idea a recognition to which it is entitled and which, as its champions assume, has not heretofore been given to it in proportion to its importance. It is no longer deemed sufficient merely to control and , if neces- sary, rectify the result gained in the way of logical deduction from legal concepts, by considering the needs of the subject-matter and the reasonableness of the deci- sion, as was laid down by Jhering and Kohler. Instead, we are from the beginning to aim consciously at a prac- tically useful and reasonable result. So far as heretofore the sociological idea has had a place in the administration of the law at all, it has been employed clandestinely, as it were. The notion has prevailed that the subjective sense of justice, which is the foundation of the sociological idea but which has generally been identified with arbitrary discretion, is i altogether unfit to become the positive basis of adminis- tering justice. Some have gone so far as to advocate the total elimination of this feeling, and it is by no means improbable that among the judges there are all too many unrevealed adherents of this view. Yet they make no objection to the harmless notion of "equity," which at bottom is identical with the sense of justice, and forget that every decision based on "good faith" is in reality built up on that very feeling. 11] CRYPTOSOCIOLOGY 105 A result of all this has been that the decisions of the courts were frequently enough, as a matter of fact, in harmony with the substantial justice of the specific case, but the true reasons were relegated to some remote corner in the opinion, so that they appeared like some mere embellishment rather than the basis of the decision which in truth they were. 36 This is the "cryptosociologi- cal" method which was first pointed out in the articles cited in the note to the title of this paper, and can easily be traced in a good many reported cases. It consists in the judge having found the true sociological conclusion, but afterwards fitting a scholastic chain of merely formal logic to it as the pretended means of arriving at the result. This is the method that hereafter is to be aban- doned. If we should succeed in evolving a true sociological method such as is probably the ideal of many practi- tioners, 36 out of this cryptospciological one, the words of On this point it is said very truly in "G" 39 (comp. also 69) that according to present practice the decision frequently "reasons back- ward." Although here also "the goal points the way," yet the decision appears as if it were read out of the statute or the intention of the legis- lator, while in reality it has been read into the statute. Thus there is in such decisions a sort of hypocrisy, which is frequently enough apparently suspected by the writer of the opinion although he does not realize what the cause of the trouble is. This difficulty we shall have to get rid of. A very instructive example occurs in RGZ 69, p. 363, which is discussed at length in "G" 65, where it may be read. .As a further example Fuchs gives the two decisions relating to the purchase of a brothel (RGZ 63, p. 179; 69, p. 97), of which the second was manifestly different from the first for no reason except that the second judgment was held to be more in accordance with substantial justice. (See "G" 65.) I may be permitted to quote the interesting expressions of Mr. Stabel, late minister of justice of the Grand Duchy of Baden. He used to exhort young judges in this manner: "When a case is to be decided, you had better at first leave your Code alone. After you understand the facts thoroughly, consider what would be right according to your com- mon sense and the law of nature and equity; then, when you have thor- oughly made up your minds on the case, look at your Code, and beholdl you will find that the statute fits your own conclusion exactly in almost all cases, and that its intention is nothing but what you intend also." It is entirely true that by following that method an unbiased judge will find at first glance what is true and right in thousands of cases. 106 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill William Stern 37 will be realized, who says, very aptly: "The great forward movements of science are not com- posed of the sudden emergence of new concepts and ideas out of nothingness, but rather consist in this, that familiar experiences, which hitherto were accepted as matters of course, are subjected to criticism, so that their problematical character is recognized and an endeavor to understand them is put in the place of an acquiescence in what is supposed to be self-evident." Of itself the sociological method does not involve the question whether the courts are bound by the letter of a statute or may, upon occasion, disregard it even where there is no ambiguity. It is therefore of a nature quite distinct from the real school of "free legal decision," which favors such a mode of procedure. 38 However, its character is such that it will produce a more independent attitude of the judge in relation to the letter of the statute as compared with the systematic conception which knows of nothing but what is contained in the words as they are written. I should object decidedly to the term "modernism," which has of late become familiar. This suggests certain currents of thought struggling for greater liberty in regard to Catholic ecclesiastical dogma, which arouse considerable opposition. Therefore this term introduces " "Psychologic der individuellen Differenzen," Leipzig 1900, p. 7. Fuchs does not belong to these extremists. (See"G" 129;"R&W" 11.) For the rest, I should incline to eliminate, as immaterial to the practical administration of law, the theoretical question whether the courts are to be confined to interpretation of existing law or may, on proper occa- sions, themselves supply a rule for a case which the formulated law has not covered. That discussion will merely afford opportunities for renewed scholastic disputes ("G" 75). This is all the more true because the sociological method goes beyond mere interpretation of statutes and requires a balancing of interests even where the statute taken by itself is clear enough. Such is the case, for instance, when we apply concepts like "contra bonos mores," constructive fraud, and similar things. Comp. "G" 131, note: "We are not dealing . . . simply with the interpretation of statutes, but with the very nature of legal justice." 11] CRYPTOSOCIOLOGY 107 into the discussions of juridical science a highly undesir- able element. We should avoid carrying the bitterness with which the fight is carried on in the ecclesiastical field into our scientific disputes, or to exacerbate the latter without necessity. 12. The Sociological Method. The very important question now presents itself whether the sociological method contains germs capable of such growth that a future scientific harvest may be expected therefrom. The new doctrine will not succeed unless it can be brought into definite, consistent form and unless it can be proven that it is not merely a negation but has a positive) content. What follows is intended to form a contribution toward accomplishing that purpose. The most determined champion of the new tendency is Ernst Fuchs, and therefore he and his observations will first occupy our attention. Even his opponents, of whom he has not a few, do not deny that Fuchs is gifted with acute critical powers. 39 We may surely take his word for it when he says that he does not deal with par- ticular defects but the whole system, the results of which "make his hair stand on end." 40 Again, he says that in his researches he finds "an ocean of injustice" 41 and that his heart bleeds when he reads decisions of which he cannot approve and in which "justice is wrecked upon) the rock of scholasticism." 42 Furthermore, nothing can be found in his book to cast a doubt on the purity of his intentions. 43 We must frankly admit, however, 3> "A very ingenious book," is what Vierhaus said of "R&W" at the Karlsruhe meeting of the German Lawyers' Association (vide "Verhand- lungen des 29. Deutschen Juristentags," vol. 5, p. 579). "G" 63. 41 "G" 64. 42 "G" 113, note 7. 43 It speaks particularly well for him, as an advocate, that he insists, in chapter 6, emphatically on the attorney's duty of absolute truthful- ness toward the court. 108 GMELIN: SOCIOLOGICAL METHOD [CH. Ill that his criticisms, which often drag wholly irrelevant matters like Nietzsche or questions of religion into the argument, frequently go far beyond the proper bounds. Sometimes he is downright unjust, as for instance in his treatment of the Roman law 44 and of Jhering. 45 It 44 An essay like "G" is hardly the place in which to dispose of the tre- mendous issues relative to the importance of the Roman law for Germany, Even the most convinced champions of Germanic law do not share the radical views of Fuchs. I need but refer to the observations of Cosack ("Lehrbuch," 5th ed., vol. 1, sect. 4) in which he distributes light and shade with an even hand. In my opinion the Romans will remain for all times the model of a people with a genius for law. The development of legal institutions in Rome proceeded on the one hand without interrup- tion and on the other hand in accordance with a tenacious conservatism that would have been impossible without a national character in which force and ethical principle were mixed in wonderful measure. (Comp. Chamberlain, "Foundations of the Nineteenth Century," vol. 1, chap. 2.) Fuchs himself recognizes that the Romans cannot be held responsible for what their successors did with Roman law. We must admit that the trouble caused by present-day scholasticism is due to the ossification which Roman law underwent in the course of centuries, and I welcome a revolt against what Fuchs very happily stigmatizes as "pandectology." I am at a loss, however, to see what is to be proved by the section from Digest, Tit. de ^Edilicio edicto (lib. xxi). The cases there set forth were no doubt entirely appropriate as a guide to practical application at the time when they were compiled. They are still very instructive. We should be fortunate if the "ratio legis" were always exhibited so ingen- iously in modern statutes as it is in the excellent section 1 of this title which is built up altogether on a sociological foundation. We must say that Fuchs' 's onslaught on Roman law constitutes a sort of "attempt by insufficient means." 46 By the side of many passages in which Jhering' s views are frankly approved, there is a passage ("G" 108) in which a sentence from "Lawas a Means to an End," p. 150, taken out of its context, furnishes the occasion for a vehement attack on Jhering. But this arrow misses the mark. Jhering had a strong sense of humor and satire. Of course he did not mean to advocate conscious fortune-hunting; but he speaks of the marriage of rich women to high officials as something which is often met with and is caused by social conditions as they actually exist, describing it as a phenomenon of life in society that is useful to the State by permit- ting it to keep the salaries of officials low. Whoever criticises this passage, intended to be ironical, as being brutal has entirely missed its meaning. The criticisms leveled against "Law as a Means to an End" seem to me to be entirely mistaken. Jhering, the man who was the first to examine and explain the Roman law, not merely as regards its form and verbal meaning, but regarding its real substantial contents; who (in "Scherz und Ernst") first held the mirror up to scholasticism; who devised the definition of law as "interests protected by the authority of the State," and who is celebrated as the original author of the sociological method 12] THE NEW DOCTRINE 109 would, however be acting unwisely and contrary to the precept that we should prove all things and hold fast to the good, if on account of the obvious exaggerations in many of his ideas and propositions, and the intemperance of his language, we should reject also those sentences in which he calls especially on us judges, in a manner well worth heeding, to search our consciences and examine into the character of our labors, and in which he holds up before us most important incitements for a reforming movement. 46 The glory of being the founder of an entirely new doc- trine is not claimed by Fuchs. He rather attributes it to Geny, the Frenchman, while Diiringer 47 claims this honor for Ehrlich. 48 13. Criticism of Supreme Court Decisions. In subjecting the present state of theoretical doctrine and of the administration of justice in Germany to critical examination, one may very properly begin with the theory and proceed thence to the practice which has naturally- been evolved from theory and is consequently dependent on it. It is also possible to begin with practice itself and go behind it to the underlying theory'. If in doing so we should prove, by the analysis of a considerable num- ber of decisions, that they have all been rendered accord- ing to a certain method, and if we should further show that this method is based on error, we shall be able to on account of his analysis of the interests the protection of which is the object of law a man like that has written no works which one may dispose of "by jeers and ridicule." Nor will the attack by Kohler ("Rechtsphilosophie" [translated in this Series], p. 16) extinguish the importance of Jhering, whose work will be of the greatest benefit in pro- moting the work that has now begun. It will not do, as I shall show presently, to try to pass it off with the sort of talk frequently heard, that Fuchs is not to be taken seriously on account of his exaggerations, or that a criticism of his criticisms is superfluous. "Das Recht," 1908, p. 259. 48 [Both Geny and Ehrlich are represented in this volume.] 110 GMELIN: SOCIOLOGICAL METHOD [CH. Ill find that analogous faults exist in the theoretical doctrine also, and may proceed further to find the causes that bring about such faults. Thus we have at our disposal a deductive and an induc- tive method by which to find the sources of error that may possibjy exist. The last-named method presents the difficulty of involving necessarily a criticism of and possibly opposition to the character of the decisions rendered by the Imperial Supreme Court, which exercise so great an influence. For an analysis of these decisions is most certain to deal with what is most typical in the present work of the judiciary. 49 On the other hand, this mode of procedure has the very considerable advantage that by it we can bring forward tangible results to serve as the basis of further scientific deductions. This method had never been adopted to the same ex- tent, although it is of special interest to those engaged in practical judicial work, until Fuchs employed it with the conscious intention not to find fault with particular errors or defects, but to prove on the firm foundation of the material so collected that the prevalent method as a whole was erroneous. Thus he gains the great advan- tage of compelling everybody who would claim scientific standing in this discussion to consider whether the definite cases examined by Fuchs are justly criticized or not. 50 I have already stated in another place 51 that I do not see how one can avoid admitting frankly the justifi- cation of many points raised by Fuchs, and I need not retract anything of what I have said. 49 I have carefully considered whether I ought not to refrain from using this method in order not to weaken the authority of the courts, but arrived at a negative conclusion. 60 Even the judges in the courts below the Imperial Court ought not to refrain from taking part in this scientific task. " "Wiirttembergische Zeitung fur Rechtspflege und Verwaltung," 1908, p. 467; "Deutsche Richterzeitung," 1909, p. 98. 13] DECISIONS CRITICIZED 111 Yet there is no way of avoiding, in this place, a de- tailed discussion and to proceed step by step to an analysis of the material submitted by Fuchs. 14. Analysis of- the Criticisms Made by Fuchs. First of all, Fuchs takes exception to the position taken by the Imperial Court regarding the doctrine of "dom- mage moral" in the districts formerly under the French "Code Civil," a doctrine which, according to him, the French Court of Cassation had worked out with admirable sociological insight. 82 These exceptions seem to be substantially well taken 53 as seems to be admitted even by Diiringer. 54 As to the next case discussed, 55 Fuchs maintains that the head of a household is entitled to damages for the negligent killing of members of the household who had been in the habit of turning over to him the whole or a part of their earnings, although they were not obliged to do so by law as had been done in the case in question. It seems to me that in accord- ance with the general principles of liability of the Code 56 the plaintiff here was entitled to damages, although the letter of the Code provision "does not cover such a case. Otherwise he would be worse off than if some profitable domestic animal belonging to him had been killed. Only the specific provisions of the section 58 relating to the duration of the duty of paying indemnity and similar things, could have no application. We cannot admit that the wording of the statute made the opposite deci- sion necessary. It would really seem as if the court " "R&W" pp. 25 seq. 3 Cf. also "G" pp. 53, 54. 4 "Richter und Rechtsprechung," p. 17, note 2, Leipzig, Veit, 1909. 5 "R&W" p. 27, discussing a decision dated June 10, 1907, as printed in "Juristische Wochenblatt," 1907, p. 480, No. 2. BGB 249. i BGB 844, par. 2. o BGB 844, par. 2. 112 GMELIN: SOCIOLOGICAL METHOD [CH. Ill might have had the courage of giving a liberal construc- tion to the statute, if they had taken into consideration the suggestion offered by Fuchs that otherwise a father, who through the assistance of his numerous sons and daughters was on the road to wealth, might have all of his children shot one by one, without being entitled to civil damages. 89 In the next case 60 criticized in the author's essay a married woman, living under the rule of joint adminis- tration of the estates, who sues with the consent of her husband, is ordered to prove that the subject-matter of the action relates to her, and not to her husband's, estate. For that purpose the cause is remanded to the court below. That whole matter might have been definitely settled by the observation of Fuchs 61 as fol- lows: "As the husband, being the head of the marital community, had consented to bringing the action, such legal subtleties were quite immaterial." 62 Then comes a discussion 63 of a decision 64 in which it was held that the family of a man who had been 69 Having a deeply-rooted conviction that in the matter of the "dommage moral" the German courts have unfortunately shown them- selves inferior to the French, and that in the second case mentioned above, under a proper interpretation of the statute, the father would have received damages for the wrongful killing of his child, Fuchs, on page 28, allows himself to exclaim: "One is indeed tempted to call to arms, but not against creative but against eunuch-like administration of law." I am the last to fail in strong reproval of such a slip, but also the last to believe that an author should be anathemized because of this bitter outcry, which was caused by a not unjustifiable feeling that the manner in which justice is administered in Germany does in such cases fail to show a proper creative force ("the highest quality," "G" 187). In "G" 63, 64, there is also a gross contempt of court deserving reproof. '<> RGZ 64, no. 81, p. 323. "R&W" p. 31. * That is true notwithstanding Diiringer's observations in "Recht," 1908, p. 264. Compare also "G" 44-46, where Diiringer's telltale expression "What has sympathy to do with a court of review?" is properly animadverted upon. The author there says that the compass, of feeling for justice must be pointing in the wrong direction where such a question can be answered in the negative. "R&W" pp. 32, 37. RGZ 64, no. 85. p. 344. 14] DECISIONS CRITICIZED 113 drowned in an insufficiently guarded stream running through a village have no claim to damages, 65 because the provision of the penal code was a protection only for the deceased himself but not for his family. This decision is justly excepted to, 66 and the reason given for it, that the death of its head did not necessarily prove a pecuniary loss to the family, is also attacked with good arguments. As to the next case, 67 it is shown 68 in substantial although not formal agreement with the views of the Court, how the reason for that decision could have been stated very simply. The decision was to the effect that where a bailee, being entitled to deposit the thing bailed or the proceeds of its sale, under the provisions of the controlling sections, 69 with the proper officer, sells the thing bailed at public auction, he may, instead of depositing the proceeds, pay it to the person entitled thereto, and in doing so satisfy any claim of his own as an offset. The next question is whether a lessor is liable in damages, where the lessee has rescinded the lease for the reasons permitted by the Code. 70 The affirmative answer in this case does not seem to me to be so com- pletely justified as Fuchs assumes, in accordance with the Imperial Court overruling the "Kammergericht." Precisely from the sociological standpoint, is it not unjust to make the lessor liable for all damage to the lessee even where he is not at fault when the premises become uninhabitable? Is not the gravamen in such a case the negligence of the lessor, as suggested by another Under BGB 823, par. 2; cf. Penal Code 367, No. 12. Comp. my observations in "Deutsche Richterzeitung," 1909, p. 100. " RGZ 64, no. 90, p. 366. "R&W" pp. 40-46. BGB 383,384. ' RGZ 64, no. 93, p. 381; BGB 542; "R&W" pp. 50-52. 114 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill section? 71 Yet the Imperial Court never touches upon this matter. 15. Further Criticisms. In the next case, 72 1 should be inclined to agree that one should not carry the logical deduction from a concept so far as to arrive at the utterly unsatisfactory conclusion that the purchaser of a house is obliged to tear it down because his grantor had built across the boundary line of the lot into the adjoining lot which also belonged to him. It would seem that this is a case for applying the section of the Code, 73 which authorizes the tender of a money rent in such cases. Next, with regard to the "replica compensationis" I agree that such a plea should be admitted. 74 It would seem obvious to any unprejudiced person that where action is brought for a part of a larger demand, the defendant cannot object to having any offset on his part counted against the portion of the demand not sued for. Otherwise plaintiff would have to dismiss his action or suffer judgment, and then begin a new action for the whole claim, including the part about which there is no dispute. That is surely nothing but an abuse of process, which the court should prevent, for the law must be held to be against and not in favor of abuses. ********* In the case where the keeper of an animal was sued for injuries caused by a horse to a person whom he had allowed to ride with him by way of accommodation 75 I agree with Fuchs that the Supreme Court ought to have ruled against the plaintiff. This is on the ground that obviously he would himself have thought the claim inequitable and preposterous if he had been in BGB 628. ' Cited in JW, 1907, p. 301; "R&W" pp. 54-59. n BGB 912. ' RGZ 66, no. 62, p. 266; "R&W" pp. 61, 81, 82. RGZ 65, no. 75; "R&W" p. 67. 15] DECISIONS CRITICIZED 115 the shoes of the defendant. The so-called supplementing of the lacking intention of the legislator by the court 7t! is based purely on fiction, while what really should have taken place here was to have the sense of justice of the court decide. In a case like this, one can hardly say that the facts were taken into consideration. ********* 16. A Difficult Case. The next case considered by Fuchs 77 requires more detailed discussion in view of its difficulty. The facts were that a ten-year-old boy was employed as a laborer in a coal mine, contrary to the statutory provisions of the Industrial Code. 78 He lost several fingers of a hand in the course of his employment. The question arose: Is an employee illegally employed to be taken as insured within the meaning of the Indus- trial Accidents Insurance act? If so, he will receive the compensation provided by that act out of the funds of the trade association, which will not amount to very much, but he is excluded from all further claim against the employer. If the answer should be in the negative, he will retain all his claims upon the employer (who may possibly be insolvent), but will receive nothing from the trade association. In either case he is threatened with certain risks. The Imperial Court declares in favor of the principle that the first alternative is preferable, and I believe that to be correct, as far as it goes, differing from Fuchs. The proposition is presumably based on the ground, correct from the standpoint of sociology, that children suffering personal injuries in such cases ought to be protected at least to the extent of the compensation provided by the act, and payable by the association, which is solvent. In the concrete case at bar, the boy's ' RGZ 64. " RGZ 66, no. 14, p. 42; "R&W " pp. 72 seq.; "G" pp. 49 seq. ' Industrial Code, 135, 154a. 116 GMELIN: SOCIOLOGICAL METHOD [CH.III claim was rejected by the arbitrators on the ground that the association was not liable where the contract of employment was void for illegality. The Imperial Court, in accordance with the contrary views expressed by it, dismissed the boy's action against the employer, which had been begun in the civil court. In this con- nection it does not appear why section 135, par. 3, of the Industrial Accidents Insurance Act was not applied, a question which is not discussed in so much of the de- cision as has been published. According to that provision the ordinary courts are bound by the decisions of courts of arbitration, and it would seem that the Imperial Court should have held on that ground that the employer was liable. Possibly the Court failed to apply this section with the idea in mind that "valid judgment" within the meaning of section 135, par. 2, would refer merely to the liability or non-liability of the association, but would not dispose of the question whether the. ordinary courts were bound to recognize a liability of the employer, even where according to their own view none existed, in obedience to the decision of the arbitrators. However, we could not assent to such an opinion from the sociological standpoint ; for it cannot possibly be the intention of the statute that in a con- crete case like this unfortunate one the person injured through the fault of an employer should receive nothing at all. 17. Further Criticisms Analyzed. In a case where a party has refused an oath which as put comprised several distinct subject-matters, 79 there must be some way by which the court above may remedy the over- sight through which the oath was refused entirely instead of regarding the objectionable subject-matters onlv. / ' RGZ 66, no. 50; "R&W" p. 78. 17] DECISIONS CRITICIZED 117 With reference to his next case, 80 I agree with Fuchs when he says that practical considerations and equity require that the vendor of a defective article, in an action for damages, should have the burden of proof regarding any defenses he may have, so that the "legal deduction," on which the Imperial Court expressly relies, ought not to be decisive. ********* I now proceed to a consideration of the decisions criti- cized by Fuchs in another work. 81 Touching the first case, 82 1 agree that it would be more correct to deny the right of claiming a reduction of the purchase price to the guarantor, where the vendee either cannot or will not demand such reduction. There is no logical necessity growing out of the concepts of rescission of a sale or demand for a reduction of price, for making a distinction in the relation of the principal debtor to the guarantor. Referring to the next case, 83 one feels disgusted at the doctrine that a man who has been declared the father of an illegitimate child is not allowed to interpose a defense 84 in an action by the child through his guardian, for maintenance and support, where the mother had been subsequently convicted of perjury, but the man had failed to bring an action to set aside the judgment declaring him to be the father. In this connection we may call attention to the more correct view taken by the First Criminal Division, to which prior decision, ^however, the Sixth Civil Division makes no reference. "No matter how high one may rate the sacredness of a judgment, RGZ 67; "R&W" p. 82. si "G" ch. 2, pp. 27 seq. 8! RGZ 66. no. 80; "G" i . 27. s' RGZ 67, no. 43; "G" p. 29. M Under BGB 826. ss RG Str 34, 282, 283. 118 GMELIN: SOCIOLOGICAL METHOD [CH. Ill it must not be allowed to shield the wickedness of criminality." 86 ********* The decision next brought under consideration 87 is more in harmony with the strict rules governing negoti- able instruments, it seems to me, than the opposite views of Fuchs. It was possible for Adolf M. to bind himself personally. The fact that the note was intended to bind the firm known as Adolf M., of which Adolf M. personally was the attorney in fact, should have appeared on the instrument itself. ********* The distinction relating to signature by an attorney and by a mere amanuensis mechanically adding the sub- scription which Fuchs criticizes in his book 88 is well founded in the statute. 89 Even though in the latter case signature by an amanuensis were permissible, nothing would indeed remain of the requirement of "signature in his own hand," required by the section of the Code. 90 Such distinctions, though at first glance they may sur- prise us, are not to be avoided in any body of law. ********* 18. The Subject Continued. It is shown 91 how, by means of the "constructive and dialectical" method, actually two views diametrically opposed to each other may be "proven." In this case a creditor accepted the substitution of the purchaser of mortgaged property as a personal debtor, although the reference to this transaction had not been entered on the record of con- veyances, as required by the section of the Code. 92 "G" p. 30. ' See "G" p. 33, citing from JW 1908, p. 280. 8 "G" pp. 41, 42. w Where a writing is required, see RGZ 50, pp. 51, 81, 387. BGB 126, par. 1. . 91 "G" pp. 46, 47; ci. also p. 44. BGB 416, par. 2. 18] DECISIONS CRITICIZED 119 There are two contradictory decisions of the Imperial Supreme Court. 93 Nobody is likely to deny that the second of these decisions is obviously correct and might easily be justified in two simple, easily understood sentences. ********* I agree again, however, with Fuchs in his criticism of another decision cited. 94 I cannot believe it to be good law when the will of the paralytic widow Schmidt is declared invalid because the judge before whom it was made had not required her expressly to state that she could no longer write, as I have already said. I also am of the opinion that this is a most extraordinary exag- geration of the blind respect for forms, and shall reiterate, notwithstanding adverse criticism, that a deci- sion like this impresses one as inhuman. It seems, by the way, as if the decision had met with universal dis- satisfaction. 95 On the other hand I am not on the side of Fuchs in his animadversions on two other Imperial Supreme Court 96 cases. In the former case I cannot believe it to be good law to extend the sociological reasons which make the maxim that "purchase destroys hire" inapplic- able to the rent of a dwelling, also to the case of leasing hunting rights, which is a contract of a very different nature. In the other case I am of the opinion that a counter-complaint in a separate action is not admissible at all in cases where damages are sought for execution on a judgment which was afterwards set aside, when the section 97 of the Code of Civil Procedure gives a special remedy in such cases. For this reason the point Gruchot's Beitrage 49, p. 354; RGZ 63, p. 42. M "G" p. 277; RGZ 68, No. 79. Comp. Danz, in DJZ 1909, pp. 100, 101 ; Hell-wig, ibid. p. 426. JW 1909, nos. 12, and 22; "G" 304, 295. ' 717, par. 2. 120 GMELIN: SOCIOLOGICAL METHOD [CH.III that the counter-complaint involved a larger demand could not be relevant. It would seem that anybody who has painfully worked himself through the artificial reasonings in the decisions of the intermediate and supreme courts, and then finds in the appendix to Fuchs' book the solutions of these problems in the spirit of sociology, 98 would become imbued with the enlivening hope that at last common sense, which has so often knocked at the gates in vain," will enter triumphantly into the temple of Themis. Regarding what Fuchs calls a "decision professorial and assessorial" reprinted as an appendix to his book 100 we shall have to admit frankly that in a day not very remote it will be fit for exhibition in a museum of legal curiosities as a fossil relic of a method long since sup- planted. 101 The "scientific" decision of the Ober-Landesgericht [District Court of Appeals] I consider erroneous, as Fuchs also regards it. 102 If anybody offers a thing for sale on the express condition of cash payment, no set of circumstances can justify a judgment forcing him or his successor in law to part with the goods without such cash payment. It is impossible that a person to whom such a thing should happen should not feel that he was being robbed under the forms of law, no matter what learned arguments may support such a decision. 103 For instance, page 308, referring to JW p. 55, par. 25, and other places. I should like to call special attention to the last paragraph but one on page 261, where is stated concisely and well: If a husband is capable of purchasing and paying for land to become part of the commu- nity property, he must also be capable of giving a mortgage as security for the purchase price. Common sense in matters of law and true subjective sense of justice are synonymous terms. "o Appendix II, p. 266. " It should be observed, however, that this judgment was reversed by the Appellate Court at Karlsruhe. i See "G", Appendix II, p. 271; "G" p. 321. i" "G" p. 321. 18] DECISIONS CRITICIZED 121 In the present case the facts would entirely justify the assumption that the delivery should take place on payment of the balance still due, and that before this was done there was to be no transfer of title. Such an assumption would have been in harmony with the actual circumstances and would have prevented the inequitable result of the action. 19. The Supreme Court Sometimes Sociologically Correct. The character of the list of cases Fuchs criti- cizes adversely might create the impression that he is inspired with a hostile animus, and as a matter of fact that charge has been made against him. I believe that there is no ground for this. Fuchs gives high praise to the German judiciary in general 104 ; and where he finds sociologically correct judgments he calls special attention to them with evident pleasure. All correct decisions were found without idolatry of the letter, "contrary to mechanical pandectology, which means in harmony with a feeling for justice unhampered by traditional routine, and with an understanding of the sub j ect-matter . ' ' As illustrations of this proposition I may myself call attention to the feeling of relief created by such decisions as that in which the court held the restrictions on their liability which the management of the Kiel Canal had, in the interest of the Treasury, imposed on ships passing through the canal to be illegal exploitation of a mono- poly. 105 Similarly, I call attention to a number of decisions in which various commercial abuses were held improper, such as the commingling of goods with others of inferior or worthless quality. In the matter of prac- tice and procedure also, the Imperial Court has reaped its brightest laurels in those decisions which make for i "G" p. 28, 8. io> RGZ 62. 266; 68, 358. 122 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill a thorough investigation of the facts, such as where it insists on the exercise of the duty of the judge to interro- gate witnesses (section 139, Code of Civil Procedure) 106 ; or when it carries on a persistent warfare against recur- rent attempts of the lower courts to restrict the right of submitting evidence. 107 Thereby the Court supported a truly sociological idea, to wit: the primary need of thoroughly mastering all the facts, against the resistance of legal formalism. 20. Individual Errors or False Method. I believe that this detailed reexamination of the cases commented on by Fuchs affords a sufficient basis from which to pro- ceed toward the solution of this question : Is this simply a matter of individual erroneous decis- ions among the judgments of the Imperial Court (num- bering about 2500 annually) , and is the same thing true of the numerous decisions of the lower and intermediate courts, which Fuchs in accordance with the Imperial Court considers erroneous? To this question the answer must be in the negative. The whole method involved is faulty. This false method is exhibited in all cases in which unsatisfactory and, to use plain terms for the sake of truth, unjust judgments were rendered. In all such cases we can find the invaria- ble characteristic that decisions are based on doubtful arguments drawn from the letter of the statute or an artificial, abstract deduction, while reasonable inferences from the concrete facts, equity, and the subjective sense of justice were neglected. 108 For where a mere reading of the opinion, as is the case in not a few of the decisions 10 This is called one of the shining examples of how the Imperial Court administers the law in: Schneider, "Die richterliche Ermittlung des Sachverhalts," 1888, p. 109. " 7 The Imperial Court has "insisted on this constantly in a most meritorious and intelligent manner"; R. Schmidt, "Lehrbuch des Zi- vilprozesses," 72, ii, sub-section 2. o Comp. below, sec. 22. 20] WHERE THE DEFECT LIES 123 cited, causes a feeling of annoyance, pain or indig- nation, one may rest assured invariably that interests entitled to protection have had to give way for lesser interests on the opposite side, or that they have been sacrificed to legal technicalities. In all these cases a more liberal interpretation of the statute, the omission of unreal, abstract argumentation, the weighing of interests in accordance with the manner in which the business world looks at these things, and lower value put on tech- nicalities would have given the victory to the just claims of the parties. Thus we must recognize that it is vain to hope that mere abstract knowledge of laws and statutes and their purely abstract application will suffice. In that way we shall miss the true mark, and substantial justice will be wounded a thousand times. Nothing can come of it but fatal error repeated again and again with a cer- tain appearance of right. 109 It follows that the essential element in the adminis- tration of justice is to be sought in a place different from that in which it has been looked for in the past. The very kernel of the work of the judiciary lies in the just government of the real interests and possessions of human beings. The scholastic and dialectical method prevailing to-day, attempting as it does to draw the decision as logical conclusion from the legal rule, by means of verbal interpretation supplemented by purely verbal inferences, without proper weighing of conflicting interests and without considering whether the result will be reasonable or not, is decidedly wrong. Unless we realize that it is the business of courts to serve the inter- ests of actual life and to adapt their judgments to them, instead of forcing the facts into a bed of Procrustes io Fuchs may rightfully claim the merit of having given brilliant proof of this by his inductive method. 124 GMELIN: SOCIOLOGICAL METHOD [CH.III according to some schematic formula, we are on the wrong road, and we shall err fatally in imagining that we can ever obtain certainty of the law in this manner. 21. The Prevailing Method not Working Properly. For nothing is more certain than this: all the decisions we have referred to as substantially unjust are supported by undoubtedly acute legal arguments that cannot be gainsaid from the standpoint of formal logic. 110 This fact proves that the prevailing method of finding the decision by logical deduction from the legal rule does not work properly. It seems to be an open secret that in the majority of cases we can support both sides of a con- tention by deductions and constructions drawn from the rule by faultless logic. In courts composed of several justices, where the decisions are notoriously often adopted by a mere majority vote, "the defeated minority could support the opposite decision by drawing from the rule pandectological arguments that would be quite as beautifully logical." If that is admitted, it is quite possible to come to the conclusion that our decisions are "accidental products of juridical construction." The courts must therefore make it clear to themselves that they are deceived when they take comfort, as they have done in the past, in the fact of having deduced their judgment by formally correct conclusions from legal rules. They should know that the sense of justice of our age, sharpened as it is by social and sociological ideas, demands first of all a just decision, found by the balancing of the substantial interests involved, so as to regulate and govern the legal relations submitted to the judges in a reasonable and comprehensible manner. Such order can be brought out of confusion by no judge 110 It is even true (see "G" 146, 147) that judgments wrong and unjust from the sociological' point of view are supported by greater deductive acumen than those sociologically correct. 21] AN INEFFECTUAL WAY 125 who fails to seek first of all what is just, subject to the controlling function of the positive statute. "The certainty of the law is not determined by pandectology, which is little more than a lottery, but by the personal character and substantial experience of the judge." 111 To eliminate the.full influence of the judge's individuality in favor of a phantom of certainty and equality is con- trary to the nature of law, turns the administration of justice into mechanical machinery and renders it unadapted to real life." 112 22. The Sense of Justice. Yet it is held pretty generally, at the present time, that the individual sense of justice is an inadmissible and unprofitable factor in the administration of law. Sense of justice is identified U with arbitrary will, and it is denied more or less emphati-^ cally that this can become the proper basis for a judicial decision. To deny the existence of a subjective or individual I sense of justice would be to contradict all experience, y Such a sentiment exists as certainly as does conscience, with which it is allied by many essential features. Long ago the Romans knew that this feeling may be increased and strengthened by practice and training. That is why they spoke of "constans et perpetua voluntas jus suum cuique tribuendi." How absurd, however, to eliminate this feeling from the very place where it is especially fitted to exercise its function! Of all places, from the heart of the judge whose calling makes it his duty to cultivate and develop this feeling in himself! Do not all men in ordinary life draw their conclusions as to what is just from this inborn sentiment in a million cases which are never submitted to a court and which form by far the greater portion of the facts to which law in G" 84. 112 -G" 188, 189. 126 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill and justice is applied? Does a well-disposed layman, in attending to his affairs, ever consult anything but his experience, his common sense and his conscience, which we all know speaks in plain language to him who stands at the parting of the ways?" 113 Yet will it be said that as a matter of principle the judge is obliged to act differ- ently, the judge, whose business it is, as Klein says, to tell the parties what they ought to have done before they came into court? 114 Is there really an insuperable barrier between doing business under the law and the rendering of judgment on the law? Can it be that the function the judge is not to regulate the working of the law in actual life according to the nature of legal life, but to impose upon such legal life something alien to it, discov- ered in the statute by means of speculation and abstract argumentation? Are not the laws supposed to be merely the formal expression of the manner in which economic and social intercourse is reasonably carried on? Was Vfiere not bartering and selling before there were statutes prescribing what duties were to grow out of such trans- actions for the participants? 115 Was Zeppelin to defer the conquest of the air until aerial traffic had been regulated in neat little rules and sections? 116 Where is the judge to find decisions for conflicts arising out of relations not regulated by statutes, if not in natural equity in the light of a fair balancing of the interests ' involved? 117 And how are you going to eliminate the Comp. "G" 11. Ibid. Comp. the excellent passage in the report ("Motive") on the bill to regulate the relations between authors and publishers (Act of June 19, 1901), where Danz says (p. 24) that the bill did not intend to create new law but merely to recognize and affirm the practice already prevail- ing. That is the true type of the growth of law. " "G" 58. ' It is true, however, that equity must be distinguished from sub- jective sense of justice in so far as it represents the general sense of what is just. This has led Schmolder ("Die Billigkeit," p. 35) to treat equity as 22] SENSE OF JUSTICE 127 natural sense of justice where the statute expressly refers* to it, as it does when it speaks of "weighty reasons," "good morals," or "good faith"? What blindness, to demand of the judge that he forget his subjective sense of justice! No, indeed! Unless one is ready to involve himself in absolutely monstrous and insupportable incon- sistencies, he will have to recognize that the court must as far as possible declare the law to be as people would naturally do in their daily intercourse ; in other words, he must call to his aid the subjective sense of justice. _ There is another reason why this should be so. This manner of finding the law, which appears so strange to the learned judges, is already applied to a very con- siderable extent in the lay courts recognized by law. As a matter of fact a lay court is quite sure always to ask itself first, what would be done in any given case by a sensible person called in to act as a peacemaker trying to be fair to both sides; after that it will consider whether the statute will permit them to render a decision accordingly. In the commercial courts, where I have experience, the presiding judge will hardly do otherwise if he means to convince the lay assessors of the correct- ness of the decision. If it is claimed that the adminis- tration of law as thus carried on in the lav courts is synonymous with popular sense of justice. Afterwards, however, he recognizes expressly (p. 56) that equity substitutes the "pleasure" ("placitum") of the individual judge for formulated rules. Hence must follow that a certain degree of subjective discretion on the part of the judge must be conceded if equity is to remain a factor in the administra- tion of justice. For without such discretion one could not know what is equitable. To eliminate equity from the "ars boni et aequi" is simply un- thinkable. In discussing the subjective discretion of the judge we must not forget that his knowledge of the whole body of law and the inter- dependence of its parts (say, e.g., with regard to the utility of pre- scribed formalities and the necessity of enforcing them) will so vitally affect his original sense of justice that a new and peculiar condition of his mind is the result. Of this condition the judge could not rid himself in any particular case, even if he wished to do so, any more than a medical expert, in testifying, could eliminate his knowledge of medicine. 128 GMELIN: SOCIOLOGICAL METHOD [CH. Ill wrong in principle, we shall have to maintain that in Germany there are two ways of rendering justice, one of which is utterly irreconcilable with the other. 23. The Theoretical Conception of Judgment. Besides the formalism which would eliminate the sense of justice and simply subsume the matter to be considered under some statutory provision, another factor plays its part in exerting a considerable influence on the formalistic method. That is the theoretical conception of a judg- ment in civil actions. Commentators on procedure usually have little to tell us about the nature of a judgment, except that a judg- ment is the "final decision rendered by the court after an obligatory oral trial." The prevalent idea regarding the substantial nature of a judgment in a civil action is that the judge has to "bring the case under the statute," to subsume it. Following Savigny, we are taught that a judgment is a syllogism wherein the legal rule is the major premise, the facts the minor premise, the decision the concluding member. In practice, at least, we have never progressed beyond this point. The idea seems to be: I if we have established the facts and found the proper rule, the decision will spring up of itself, so to speak. A judgment is conceived to be declaratory in its nature. According to Gaupp-Stein, 118 a judgment is "a declaration stating what is the law as applied to a state of facts and the condition of an action," and it is said to be "but seldom" that the "decision is at the same time imperative as to what shall be the legal relation of the parties meaning, in the latter case, so-called consti- tutive actions [i.e., actions in which a judgment is sought that merely declares what the duty of the defendant is toward the plaintiff as, for instance, actions simply for an accounting, for restoration of marital rights, etc.]. "' "Code of Civil Procedure": introduction to section 300. 23] AN ERRONEOUS THEORY Now here, in my opinion, we have before us one of the fundamental troubles under which our system of administering justice is laboring. The assumption that the decision is, in its essential nature, equivalent to a logical conclusion is erroneous. 119 The decision and judg- ment is not merely a logical conclusion; it is also an exercise of the power of the State in the interest of keeping the peace under the law. The judicial determin- ation has under all circumstances the characteristics of an act of will on the part of the State and consequently it must necessarily be a command, for the reason that one cannot conceive of acts of will under the authority of the State except under the form of commands. This is clearly seen by Fuchs also: "The traditional concep- tion is that the judge first formulates the major premise from the statute and its interpretative materials; next he subsumes the state of facts under this rule, and finally he deduces his decision as the logical conclusion. If we recognize the lack of truth and reality in this scholastic tradition, we have comprehended the whole essence of the inductive method in the administration of law." However, by this very conception of the nature of decision and judgment which we have characterized as being erroneous, one is scarcely less than compelled to rely, in a manner not justified by reason, on the dialecti- cal method. It^is very different when one conceives of judicial determination as a command or an act of will by the State. That cuts off at once the possibility of deducing this will dialectically from the rule of law. In this way, however, the importance of the formulated rule is restricted, without further difficulty, to the limits imposed by the nature of the subject. The judge, Comp. Billow, "Gesetz und Richteramt," Leipzig, 1885, pp. 5 seq.; Gmelin, "Die Vollstreckbarkeit," Tubingen, 1898, p. 48. See also "R&VV" 81, where judgments are denned as "authoritative categorical declarations"; and "G" 35. 130 GMELIN: SOCIOLOGICAL METHOD [CH.III in trying to find the correct decisions, can no longer start from the idea that somehow there is concealed in the facts of the case a rule the counterpart of which he must find in the provisions of his Code. He will feel instead that his task is, by an act of will,- to regulate the exercise of the mutual rights of the parties and to make a just distribution of the property in question. He will remem- ber that he is there to help the parties to achieve the purposes for which their various transactions were under- taken, so far as these purposes are not disapproved by the law, and to give to parties whose rights have been invaded without any act of their own such protection as they are entitled to in the way of a reasonable and just regulation of their interests. The first thing required, therefore, is to direct the will of the judge t the reasonable and just result within the limits of th positive rule of law. 120 24. The Balancing of Interests. Here is where the balancing of interests by the judge comes to his aid. This is no imaginative thing but a substantial reality. For the things to be weighed, the material interests, exist and are easily understood if one's mind is directed toward them. This balancing of interests will furnish the solid basis for the subjective sense of justice that is to guide the will. The balancing itself is in turn, to a great extent, aided by the general manner in which the business world looks upon the subject. In those cases, however, where the business world has not yet formed a general opinion upon a subject, it will be the function of the judge to create such an opinion and to give it th form he would give it if he were acting as legislator. 121 120 \Ve do not fail to see that in the case of a very simple state of facts there is no room for discretion as long as the court remains faithful to the words of the statute in the measure advocated in the text. "i In a number of decisions of the Imperial Court, notably in the well-known decision of Nov. 2, 1907, regarding the retention of title in 24] THE BALANCING OF INTERESTS 131 The subjective sense of justice will, accordingly, find substantial support in the actual rights and interests of parties in the habits and opinions of the business world, and the needs of human intercourse. The courts them- selves will concede that much greater authority should be attributed to a sense of justice supported by these material factors than they have ventured to do in the past. They will feel at liberty to find their proper functions in something else than an anxious search for legal principles supposed to be concealed in the facts of the case. The whole of the judicial function has accordingly been shifted. From the standpoint we contend for it appears like the following: The will of the State, expressed in decision and judgment, is to bring about a just determination by means of the subjective sense oi justice inherent in the judge, guided by an effective weighing of the interests of the parties in the light of the opinions generally prevailing among the community regarding transactions like those in question. The determination should under all circumstances be in harmony with the requirements of good faith in business intercourse and the needs of practical life, unless a posi- tive statute prevents it; and in weighing conflicting interests the interest that is better founded in reason and more worthy of protection should be helped to achieve victory. 25. The Need of a Change in Attitude. If the conception of judicial functions outlined above is in line with what Fuchs is aiming at, as I do not doubt that it is, although he may not yet have expressed it in this form, then I do not hesitate to declare that the machinery, this point of view is not understood, and instead the court tries to discover what the general popular custom is regarding a subject on which there is no such popular custom. 132 GMELIN: SOCIOLOGICAL METHOD [CH. Ill results of this reasoning point the way toward a com- plete revolution in the theoretical notions now prevail- ing regarding the judicial function in civil actions, and consequently in the practical administration of the law. 122 If the views here maintained are correct, it is time we should get rid of the attempts, now shown to be fruitless, to deduce the decision dialectically from the formu- lated rule. The place of these attempts will be taken by proof that the decision is within the formulated rule, but this proof would become the second step, while at present the deduction from the rule is the first step in the mental process. Instead of that, the grounds of decision will hereafter prove (and one is tempted to say that this in- volves a shifting of the burden of proof which now rests on the writer of the decision) first of all that the distri- bution of property and rights, as contained in the judg- ments, is in accordance with right and justice. It is to be just in this sense also that the decision, in case the matter to be decided is a type of similar cases, must be fit to constitute a rule for future cases of the same kind. In this view of the matter, however, the statute or rule retains its authority to this extent that the judge must show that what he wills and commands is within the limits of the positive statute, that the rules applying to the matter do not necessarily require the opposite decision, and that the decision does not, accordingly, violate the law within the meaning of section 549, Code of Civil Procedure. 26. Objections to the New Method. Does not the new method, however, imperil most seriously the cer- tainty of the law? That question I shall answer by the counter-question: Does such certainty exist at present? ' / IV We shall have to contend that this conception is a new one until it is shown that conscious sociological methods are in practical use by the courts even now. 26] OBJECTIONS ANSWERED 133 "It is plain to be seen that nobody can know what his rights are if the courts go on supplementing the statutes in the manner they are doing now." "Anybody unfor- tunate enough to fall into the clutches of a fanatic for logical deductions and legal fictions will find that a law- suit is purely a lottery." "It is possible to 'deduce' aln sorts of legal results, which may be wholly inconsistent I with each other, out of the same state of facts, because the selection of a starting point for the process of deduc- tion is not hindered by any regard for realities." He who says these things is not even that terrible fellow Fuchs, but a German university professor, Ernst Stampe of Greifswald, 123 whose good intentions nobody can deny, and who yet demands earnestly that interests be balanced on a sociological basis. To be sure, he must admit that the ears of the practitioners have up to this time been deaf to all such demands. "Many of our practical friends are loath to give up their pleasant walks in the paradise of legal abstractions, where they can pick up without trouble a nosegay of concepts from which to 'deduce' any sort of decision. They decline to taste of the apples from the tree of social knowledge. They murmur when the scales of Justice are to be used in the prosaic business of weighing interests." m Well, I believe that the deaf ears of practitioners may be opened to an appeal pro- nounced with the power of united voices. If Fuchs as the champion has cried too loudly in the turmoil of our age, he may be excused on account of the indifference which all great problems encounter in our day. >*' In his paper on "Unsere Rechts- und Begriffsbildung," Greifswald, 1907, Abel, pp. 6, 37. He names among his precursors, expressing sim- ilar ideas: Jhering, Baer, Billow, Rumelin, Meili, Schlossmann, and especially Heck, andEhrlich. " Says Stampe: "If the Imperial Court were to incline frankly toward this method instead of using its great skill and experience to promote the habit of abstract scholasticism, the most beneficial consequences would soon be apparent." 134 GMELIN: SOCIOLOGICAL METHOD [CH.III We cannot gainsay Fuchs when he calls on "all his colleagues at the bar from Konigsberg to Colmar" to be his witnesses for th prevailing uncertainty regard- ing the outcome of any lawsuit about to be instituted. Such uncertainty is bound to grow up while a method prevails, as we have shown, in our administration of justice, by which, more or less consciously, mere system- building and formalism become paramount. In the course of that method, unjust, inequitable results neces- sarily flowing from the dialectical method are accepted as matters of course, for formalism and lack of feeling are notoriously allied. In the light of my own experience I cannot hold Fuchs to be wrong when he asserts 125 : "The latter-day judge is not surprised at any result, on matter how inequitable; on the contrary, especially if he can find a few precedents, he comes to believe that even the most unjust decision is right." Any one of us judges who has occasion in some matter to venture a prediction regarding the outcome of a law- suit will, in view of the flood of doubtful points existing to-day, feel himself overwhelmed by a feeling of uncer- tainty. 27. ' Some Objections Refuted. My own discussion of the decisions criticized in Fuchs's books has shown, no doubt to the great joy of adherents of the old school, that differences of opinion regarding particular cases are quite possible even from the sociological point of view. is true that "Even under the sociological method decisions will not be produced automatically." In the first place, however, it is fair to assume that in innumer- able cases it will be easier to reconcile the opinions of the members of a court if the whole bench tries earnestly to put into effect what is equitable and just than if they indulge in fruitless wrangling about learned "G" p. 159. 27] OBJECTIONS ANSWERED 135 concepts. "Between different points of view regarding the act of a party, between differing appreciations of the good faith and merits of an action, it is possible to find a middle line. The severity of one judge may be tem- pered by the fairness and kindness of another. In proportion as a judgment is to be based on legal tact, a sense of morality and the instinct of long experience, each judge will become more tolerant of the differing opinion of his neighbor on the bench. Conversely, per-^ ; tinacious, stubborn maintaining of one's own opinion is natural where one has arrived at his results purely by a reasoning process, so that any concession would involve the admission that the reasoning of the other was betteri than one's own." Again, we find a powerful ally in Mendelssohn-Bartholdy, who is the author of the fol- lowing: 126 "In the sociological contest, the most reason- able, respectable, and appropriate solution will prevail in most instances, while in a pandectological disputation the most unreasonable and impractical solution has just about an even chance with its opposite." It is perhaps not going too far if one asserts, in view of the positive material submitted, that it is henceforth impossible suc- cessfully to contradict the above statement. We may assume as certain that definite guiding lines will gradually develop as the sociological method becomes more familiar. My own opinions in that respect I may briefly state as follows: We should get to the point where the proper task of a judge is generally considered to be the just distribution of property and rights among the parties, and where it is no longer held sufficient if the decision appears as a formally correct logical deduc- tion from the statute. We should rather demand that the decision will stand as a just judgment, both "in foro ' In: "Das Imperium des Richters," p. 115, Strassburg, 1908, Triibner. 136 GMELIN: SOCIOLOGICAL METHOD [Cn.III interne" of the judge, and in the estimation of the persons concerned. 127 The idea that decisions based on purely dialectical argumentation have the alleged quality of logical neces- sity is a figment of the imagination. The writer himself used to believe this, but I now renounce any such opinion. We shall have to get along without the pretense that our decisions are logical necessities. Judges should be as independent as possible both of precedents with the deductions therefrom, and of the artificial deductions of jurists. 28. Some Opinions Regarding the New Method. The task remains of surveying the reception hitherto accorded to the new ideas. In an ingeniously and cleverly written article recently published, 128 Vierhaus attempts to describe the school of free legal decision as one of those symptomatic mani- festations of the time which, whenever they find some defect in an existing institution, at once reject it utterly without supplementing their negative criticisms by positive proposals. He is sufficiently acute and fair to recognize, behind what he calls "the grotesque Capuchin harangues" of Fuchs, "the eye of a sharp observer" and "the countenance of a warm idealist, for whom true justice is a matter of the heart." Vierhaus thinks that Fuchs has transgressed the due bounds which even the most earnest controversialist should observe, but he deems the substance to be of more importance than the form. Superficially, he seems to take about the same point of view as we do here, but substantially he differs in all respects. As I view the matter, it is by no means true that the sociological method lacks a positive con- tent, and I cannot agree with the prevailing opinion 127 "G" 73, 236. 128 In DJZ 1909, p. 1169. 28] VIEWS OF VIERHAUS 137 which Vierhaus also adopts, that the whole quarrel is merely about particular legal provisions, particular juridical doctrines, particular decisions of the courts. Vierhaus may be taken for a typical representative of the theory of subsumption, for according to him "the legal concept and the legal rule are to be laid upon the state of facts, so to speak, in order to see how far they cover each other"; and further he says that "the function of the judge is at an end when he has correctly subsumed the correctly ascertained facts under the cor- rect rule," while in his opinion "a legal science operating with an indefinite sense of justice not capable of expres- sion in logical terms would not deserve the name of a science." We, however, are of the opinion that we dare no longer refuse a place in the administration of law to the subjective sense of justice, even if perhaps it is "hard to express logically," by the side of the science of logical concepts. By the way, what may the u/x,oi/u>v which Vierhaus also speaks of, be if it is not this very feeling? We shall try to discover whether it may not be possible to find firm bottom for this sense of justice in certain "realities" (as we have attempted to explain above). 129 Reading in Vierhaus's article how, as a result of the free decision doctrine, the judge is to be helplessly exposed to the influences of economic, social, and politi- cal controversies, instead of being protected by "the brazen shield of the law," one is indeed tempted to reject the new theories. However, it cannot be denied that even to-day the judge cannot really escape the necessity of making up his own mind regarding certain economic questions, as for instance the propriety of "cartels," boycotts, and the like. That being so, it would seem better to face this necessity with conscious frankness than to hide behind insincere scholastic arguments. i2> Sub tit. iii. 138 GMELIN : SOCIOLOGICAL METHOD [ CH. Ill Vierhaus himself advocates the balancing of interests; he fails to realize, however, that this point of view cannot possibly be reconciled with what he calls "abso- lutely the only possible method of jurisprudence, the deductive method which has been tested during two centuries." For according to this method the letter of the statute must be enforced, according to the logic of concept and deduction, even where a proper balancing of interests cries out for the opposite decision. We may regret it, but we must not obey Vierhaus's summons to cease from attacking the deductive method of adminis- tering justice until everybody concedes that the balancing of interests deserves the preponderance. It is very pleasant to see how Hedemann 130 treats without bias the numerous blemishes in the form of Fuchs's comments. We cannot deny that this critic is justified in calling attention to a certain onesidedness, and the lack of concise, systematic presentation of the views stated by Fuchs. He is also right in noting that Fuchs has failed to build up the positive side of his argument. Yet, the negative labors had to come first. Doubt and criticism are the forerunners of knowledge. Hedemann considers a particular merit of Fuchs his showing how there is a hidden sociological element in the traditional form of judicial work, and says that on the negative side Fuchs has done "most excellent" work, that "his labors will produce rich and lasting fruit." 29. Views of Dilringer. Diiringer m is of a very different opinion. He has no use for those who are imposed upon by phrases such as "sociological adminis- tration of justice," or "cryptosociological." Well, I surmise that Hedemann, myself, and a good many other judges, whose eyes were opened by Fuchs regarding 130 "Archiv f. biirgerliches Recht," vol. 34, pp. 116 seq. i" "Das Recht," 1908. 29] VIEWS OF DURINGER 139 "cryptosociology" and similar monstrosities, will console each other for having lost Mr. Diiringer's favor. "Sola- men miseris socios habuisse malorum." Where Fuchs refers to the assent, he has found from many quarters Diiringer speaks of "a judge here and there of some dis- trict court or court of appeals" who is "delighted to see some other court of appeals or the Imperial Supreme Court catching it." Conscious that I myself do not har- bor such malicious feelings, I am not capable of assuming that they inspire other judges who have the same scien- tific opinions as I, unless I see proof that such feelings exist. Let us wait and see whether the public will like the way in which Diiringer, although expressing his appreciation of the idealistic and noble intentions of his antagonist, descends to personalities by punning on his name (Fuchs = fox). Thus he calls him a "cunning fox," or speaks of "the fox preaching to the ducks." Again he speaks of him as "the little high priest of free decision from Karlsruhe," and as "the clown with all the modern notions." In one place he does not even scorn to attack him because he is a Jew. I doubt whether he will gain applause that way, especially as so capable a critic as Vierhaus in the article cited has already suggested that it would be better if this part of Diiringer's paper had never been printed. As to the merits, Diiringer's polemics do not carry conviction. He has omitted the preliminary labor of reexamining the decisions of the highest court which Fuchs has criticized because, as he says, "he is not inclined and has not the time unofficially to wrangle about the correct decision of judicial cases." Although he has to make admissions on nearly every page, yet, according to Diiringer, there is really no need of doing anything except to sing the praises of things as they are. "The most important business of the judge is to adapt the 140 GMELIN: SOCIOLOGICAL METHOD [( H.III legal rule to actual life," he says, "and as a matter of fact, that is what is being done." If that is so, we need add nothing but "Quod erat demonstrandum." According to Diiringer "the greatest of sociologists" is the legislator, and yet it would seem to be indisputably true that large portions of the Civil Code are nothing but scholastic and deductive. The one little drop of sociological oil with which, as it is said, the Code was anointed hardly suffices. To be sure, Diiringer does not approve of two of the worst decisions, the case relating to the will of the widow Schmidt, and the other, com- mented on in the above discussion. This being so we may assume that a good many other decisions would not have come up to Diiringer's standard of justice any more than to that of other critics if he had not disdained to "wrangle" about the correctness of the decisions analyzed by Fuchs. Finally, no matter how he may try to justify himself, Diiringer's notorious question, "What has sympathy to do with the work of the highest court of appeal?" will be remembered by scientific investigators as a demonstration how lawyers of the school at present in the ascendancy care everything for formal logic and nothing for the sense of justice, and how they are trying consciously to banish the judge's subjective sense of justice from the court room on the plea that it leads to uncertainty of the law. From what I have said here, and for that matter from what I have published before, it would seem to be clear that Diiringer's appeal to the "esprit de corps" of the German judges as against the attacks of Fuchs will appear to me and a good many others as nothinglessthandemand- ing "a sacrifice of the intellect." I repeat that every judge will find a reexamination of the Supreme Court decisions criticized by Fuchs exceedingly instructive and productive of good by widening his outlook immensely. 30] HELLWIG AND BOZI 141 30. Views of Other Law Writers. Hellwig 132 charges the prevailing manner of administering justice with inclining towards formalism and lack of freedom. He charges it with "forgetting frequently that its business is not simply to deal with logical categories or to enforce principles," and demands that the administration of law shall henceforth "satisfy the needs of the present by appreciating fairly the claims of contending interests." He holds that decisions contrary to this principle are contrary to the spirit of the law. "They are unjust. They violate a healthy sense of justice, no matter by what amount of formal acumen they may be defended." That must be called true sociological thought if Diiringer will pardon this expression! I beg to recall once more Bozi,who shows by truly scien- tific arguments how the prevailing legal thought of our time, especially in criminal cases, is purely scholastic and formalistic. Thus it has happened that a murderer has escaped all punishment for no reason but that the logical concept of "acquittal" had to be upheld. He had been prosecuted under section 139, Penal Code, for not reporting that a crime was about to be committed, and the court, in dismissing the charge, stated expressly that this was done so that a new prosecution might be insti- tuted for murder. The Imperial Court held that the two crimes, failure to prevent a murder and the murder itself, were both constituted by the same state of facts, and consequently there had already been a prosecution based on the same facts. Certainly the veriest idolatry of logic! An analogous case may be found in the decision where the defendant was held guilty of repeated theft, although the first "conviction" of the defendant, who was then a minor and was reprimanded under section 55, par. 1 of the Penal Code, was admitted to "2 In "Der Tag," nos. 240, 241 (October 23, 24, 1909). 142 GMELIN: SOCIOLOGICAL METHOD [CH.III have been erroneous. 133 Of course the sacredness of the legal concept of "conviction," as shown by the record, had to be preserved against mere substantial justice! Is this idolatry of the letter, is it legal scholasticism or is it not? Fortunate is he who is capable of consoling himself with the adage: "Tout est pour le mieux dans le meilleur du monde." Surely, those who cannot do so deserve to be laughed at. And right here I may once more call to mind the criticism of existing methods by Stampe, referred to above. 134 31. The Subject Continued, It is rather significant that the "Deutsche Juristenzeitung", in its special edi- tion on the occasion of the jubilee of the Leipzig Univer- sity, deemed it worth while to devote in that number 135 not less than three articles to the modern reform move- ment. This is not the place to discuss these articles in detail, but I should like to quote the appreciative words Mitteis wrote regarding the new school: "Some 'positive' jurists may be surprised if for the present I say merely that I have found many of these charges excessive and unfair. Out-and-out 'positivists' may have expected a radical anathema against such writings. But I cannot, indeed, persuade myself to take such a part. I believe it is our duty to take into most conscientious consideration criticisms which in part at least come from very well instructed and keenly obser- vant members of our profession, for possibly we may learn therefrom where we are at fault. I also believe that there are many things to be corrected." And further on he says: "What we need is less 'jus' and more real jurists." Recently, Professor Heck of Tubingen has also taken part in the controversy regarding the sociological i RGStr 18, p. 116. Sec. 26 supra. s DJZ nos. 16, 17 (1909). DJZ no. 24 (Nov. 1909). 31] VIEWS OF HECK 143 method. 136 He declares the cardinal error of the deductive method to be that rules are deduced from concepts which themselves have been formed to contain those rules. This he calls the method of inversion. I may quote a few sentences of Heck as strong endorsements of my views: "Technical deductive jurisprudence covers up the connection of the law ar.d the interests of real life. The law has no purpose except to serve such interests, to delimit and balance the interests of men. The principal business of legal science is to investigate the relations between legal rules and the condition of the various interests. No rule of law has been understood and explained until the interests it represents l*ave been under- stood and explained. The method of inversion fails to do this. If we consider the rule to be the logical conse- quence of a conception containing a command, we can- not at the same time represent it as resulting from a process of balancing the needs of the parties. The attacks upon German legal science are in many respects unfair and excessive, but to a great extent also they are unfortunately justified. The decisions which Fuchs deprecates are, in a considerable measure, as a matter of fact erroneous, and they cannot be explained as individual slips but must be explained as consequences of a faulty method. The greatest guilt is to be laid at the door of the inversive method. The remedy is to be sought principally in abandoning completely and as a matter of principle the method of inversion in all its forms and with all its consequences." 32. Conclusion. I believe I have succeeded in proving one thing: it is by no means true that the new school lacks the capacity for positive work. Of course a critical examination of the prevailing practice was necessary and could not fail in undermining faith in 144 GMELIN: SOCIOLOGICAL METHOD [CH. in the exclusive power of logical syllogisms to bring salva- tion. Yet here also the adage is verified: "Studere de- struit, studuisse construit." As a product of the new ideas a significant cycle of evolution seems to have begun. In it legal science may be called upon to play a leading part, provided it shall emancipate itself definitely from the scholastic lore of existing precedents, com- mentaries and textbooks, while remaining within the limits of positive law. Such emancipation cannot but have in its train a beneficial effect on legislation. For future statutes will have to avoid burdening the courts with useless and empty formulas, and instead of that will aid them by promoting a comprehension of the true nature of legal rights and interests and the relative values to be attributed to them a comprehension also of the actual human relations with which the legal rules are dealing, and an insight into the principles that guide the intercourse of men. 137 That will also have a stimulating influence upon the study of the law, which is now lan- guishing for lack of subjects of study that are living and real. More and more we must rid ourselves of the old, formalistic, and Romanistic basis of legal study, we must vigorously protest against the utterly unhealthy preponderance of the ancient languages in the prepara- tory schooling of boys and young men. The egoism now cultivated in schools and universities should be supplanted by an ethical sentiment inspired by the com- mon interests of society. The roads must be made plain for a training of our youths to be citizens of the State. These are wide horizons for our eyes to scan. Even if at the beginning but a small portion of what we are now i" Judges of the present day, as Fuchs shows in "G" 177 and in numer- ous other places, are mostly mere untrained empirics in these matters, because they lack sufficient preparatory education. In my day, at least, the student on leaving the university was about in the condition a medical student would be if he had studied nothing but anatomy. 32] CONCLUSION 145 striving for as a first step should become realized, to wit: a juster and more truly popular administration of the law in harmony with the requirements of real life, even then the labors of the sociological school would not have been performed in vain. And to help toward that end I would fain invite the entire judiciary. The sociological method is of the highest ethical sig- nificance. 138 Calling upon lawyers to emancipate them- selves from an unspeakable thralldomto logical scholasti- cism and to substitute therefor an interpretation of the law in which sound feeling cooperates, this school represents nothing less than an appeal to the general sense of justice. It saves the Court from the spirit of servility to the letter w r hich now predominates in the administration of justice. 139 It rids him of the burden of abstract deductions and controversies which for the most part lose all meaning in the light of the sociological conception. 140 It calls upon the judge consciously to perform an act of volition for the purpose of attaining the ideal of a just administration of the law. It restores to its proper place the subjective feeling for justice, and points out how the ideal may be reached by throwing light upon the means of its attainment. It raises the judge from his present station of a mere follower into that of a leader which is rightly his, so that he may guide us on the way toward a healthy conception of the law and its appropriate functioning in the daily business of mankind. Thus the judge will become the standard-*^ bearer of legal evolution. us "G" 233. " According to Hellwig, in "Der Tag" 1909, nos. 240, 241. uo "G" 23, 228. Comp. RGZ 71, p. 196, which is entirely in accord with these views. 146 KISS: EQUITY AND LAW [Cn.IV CHAPTER IV EQUITY AND LAW: JUDICIAL FREEDOM OF DECISION BY GEZA Kiss 1 1. THE FUNCTION OF THE COURTS AND THE GROWTH OF LAW. 2. HISTORY OF LEGAL HERMENEUTICS: ROMAN LAW. 3. "AEQUITAS" AND "LOGICAL EXPOSI- TION." 4. HISTORY CONTINUED: LATER ROMAN LAW. 5. THE MODERN PROBLEM. 6. THE PROBLEM OF UNPROVIDED CASES. 7. FREE LEGAL DECISION. ; y 8. THE TRUE METHOD. 9. THE REASONS FOR GAPS IN THE STATUTES. 1. The Function of the Courts and the Growth of Law. In discussing the proper method of deciding law cases, it amounts to the same thing whether we inquire into the true relation between "equity" and law, or whether we ask: What is the best method of finding the law? It is one of the excellent results of the movement for free legal decision that these exceedingly important questions have been placed into the foreground. 2 The i [Professor of Law at the Law School of Nagy varad (Grosswardein) , Hungary. This is a translation of an address delivered before the Congress of the International Society of Legal Philosophy at Berlin, May, 1910, and published in "Archiv fur Rechts- und Wirtschaftsphilosophie," vol. iii, pp. 536-550. The translator is Ernest Bruncken.] * For literature on the movement for free legal decision, see especially the data by Hedemann, "Zivilistische Rundschau," in Archiv fiir Burg. R. 31, pp. 115 seq. and 296 seq. ; cf. also: Oertmann, "Gesetzes- zwang und Richterfreiheit" (Erlangen (34) Rektoratsrede, 1909), and bibliography in the notes, pp. 44 seq.; further: Gerland, "Die Einwir- kung des Richters auf die Rechtsentwicklung in England," in: Schmidt, "Zivilprozessrechtliche Forschungen," Heft 6, Berlin and Leipzig, 1910; Gmelin, "Quousque? Beitrage zur soziologischen Rechtsfindung," l ] FUNCTION OF THE COURTS 147 juridical kernel of the subject, however, has not yet been sufficiently examined. The real problem is to explain how the law may at the same time be adminis- tered and made to grow. It is not a matter of trying to find a certain criterion for the proper boundary line between strict adherence to the formulated rule ("law") and the freedom of judicial decision ("equity"); and still less of establishing a golden rule for the art of inter- pretation, 3 and of reducing this to a single and funda- mental philosophical principle. 4 To say the least, it is a sign of excessive optimism to esteem the value of such a theory highly ; and still more so, to expect 5 "to find by means of it the Archimedean point from which all concrete cases may be decided in an objectively satisfactory manner." It is time to realize that questions like these do not at all touch the core of our problem. An inquiry dealing in an exact manner with real matters of law should confine itself to an explanation of how it may be possible that by the adjudicatory function of the courts law can be created. 6 Hannover, 1910; Sinzheimer, "Die soziologische Methode in der Privat- rechtswissenschaft," Munich, 1909; Rundstein, "Freie Rechtsfindung und Differenzierung des Rechtsbewusstseins," Archiv Burg. R. 34, pp. 1-40; Meumann, "Observations sur le systeme de droit prive," Geneve, 1909 (cf. my review in Zentralb. R. W., Nov. 1909); Cruet, "La Vie du droit et 1'impuissance des lois" (Bibliotheque de philosophic scientifique) 1910. 'As for instance: 1. Stammler's "social ideal" according to Kant ("Die Lehre vom richtigen Recht," Leipzig, 1902, pp. 603 seq.; further: "Wesen des Rechts und der Rechtswissenschaft," in: Hinnebergs "Kultur der Gegenwart," ii, 8, p. 42 seq.). 2. Hegel's and Kohler's "standard of progressive culture," as formulated by Briitt ("Die Kunst der Rechtsamvendung," Berlin, 1907, pp. 112, 121 seq., 129 seq.; cf. Kohler, "Moderne Rechtsprobleme," 1907; and recently: "Lehrbuch der Rechtsphilosophie," Berlin and Leipzig, 1909, pp. 2, 57 seq. [vol. xii in this Series]. 3. Jhering's concept of "law as a means to an end" [see vol. v of this Series]; in Van der Eycken, "Methode positive de 1'interpretation juridique," Paris and Brussels, 1907, pp. 133 seq. * Comp. especially Rumpf, "Gesetz und Richter," Berlin, 1906. 5 Thus, Briitt, "Die Kunst der Rechtsanwendung," p. 124. First shown especially by Kohler, "Die schopferische Kraft der Jurisprudenz," in Jhering's Jahrbiicher, 25, pp. 262 seq. Stemberg's 148 KISS: EQUITY AND LAW [Cn.IV It should not bother with the principles themselves of this function. For it is universally admitted that the interpretation of the law is both an art and a science, and also that it does not follow that one who knows the principles also knows how to exercise the art. 7 What is needed is rather an accurate examination of the manner in which the decisions of the courts and the science of jurisprudence take part in making the law grow and change. The results of interpretation, the fruits of judicial activity, should be analyzed in detail in order that we may gain a scientific comprehension of their nature. In this way we shall necessarily arrive at the con- ception of "aequitas," which means those principles of unwritten law which all fruitful interpretation must call to its aid. The relation of law to equity is nothing but the relation of formulated law to the unwritten principles just mentioned, which are contained in the law as it actually finds expression in the conduct of men. I may be permitted briefly to describe the historical development of this idea in connection with the history of the traditional principles of legal hermeneutics. 8 "Allgemeine Rechtslehre" (Sammlung Goeschen, Heft 169, vol. 1, pp. 123 seq., and particularly pp. 120 seq.) should be specially noted; prob- ably on account of its modest tone, this work has not been considered as it merits in later writings on the movement for free legal decision. ' Regelsberger, "Pandekten," 1, 36, 145; also: "Streifzuge im Gebiet des Zivilrechts" (sep. repr. from "Festgabe der Gottinger Juris- tenfakultat fiir R. v. Jhering," Leipzig, 1892, pp. 16 seq.; comp. also Savigny, "System des heutigen romischen Rechts" (cited from first edition, 1840), vol. 1, p. 211: "Interpretation is an art, and it is true enough that excellent models help much to train in it," but "what has been offered as the theory of it is of a much inferior kind. It is important, therefore, not to deceive oneself regarding the value of any theory of the method of applying the law even the best theory." Cf. further: Pfaff- Hofmann. "Kommentar zum ost. allg. BGB," vol. 1 (1877), 166 seq.; Hartmann, "Der Zivilgesetzentwurf, das Aequitats- prinzip und die Richterstellung," in Archiv Ziv. Praxis, vol. 37, 405 seq.; Kraus, "Die leitenden Grundsatze der Gesetzesinterpretation," Grunhut's Zeitschrift, vol. 32, 613 seq. " The importance of a history of traditional hermeneutics, "of which we are in great need in these days of discussions about juridical method," 2] LEGAL HERMENEUTICS 149 2. History of Legal Hermeneutics : Roman Law. In Roman law, the relation between "jus" and "aequitas" is expressed by the term "interpretatio." "We are accustomed to understand by the term 'interpretation' that function of the mind which attempts to find the meaning of a legal rule, especially a written rule; an endeavor to discover the intention of its author. The manner of 'interpretatio,' however, which is ascribed to the Roman jurisprudents was not of a character so exclusively passive, as we might say. Rather it included the task of adding to the written law what remained still unwritten, to supplement the former by the latter. They were intermediators, so to speak, between the letter of the statute and real life, and as such it was their business not to stick to the literal con- tents of the statute and the original intention of the legislator, but to adapt the letter to the needs of actual life and to make the application of the statute prac- ticable." 9 The interesting thing in this is, for us, the light it throws upon legal method. In the science of legal sources it is formally recognized that legal science may actually formulate new law, and this fact is expressed by a specific concept. For the result of such "inter- pretatio" is precisely what is called "jus non scriptum" in the specifically Roman sense. This form of unwritten law consists of the supplementary matter, the intellec- tual surplus so to speak, which was added to the written law (meaning the text of statutes) by the interpre- tative activity of the "prudentes." Accordingly, the concept "unwritten law" is iden- tified by Pomponius with that of "lawyers' law": is properly emphasized by Sternberg (in Zentralb. R. W. vol. 26, p. 65) ; in this place, to be sure, we can, for lack of space, give nothing but the most sketchy synopsis. 8 Puchta, "Kursus der Institutionen," vol. 1 (4. edition, 1853), p. 316. 150 KISS: EQUITY AND LAW [CH.IV "Haec disputatio et hoc jus, quod sine scripto venit compositum a prudentibus, propria parte aliqua non appellatur, . . . sed communi nomine appellatur jus civile." 10 Still more distinctly it is declared in the next para- graph that this "jus civile," which properly means the "jus non scriptum" in question, had its origin in the creative power of "interpretatio" : "Lege XII tabulorum ex his fluere coepit jus civile. Omnium tamen harum . . . interpretandi scientia apud collegium pontificum erat . . . et fere populus annis prope centum hac consuetudine usus est." 11 And finally: .... proprium jus civile quod sine scripto in sola prudentium interpretatione con- sistit." 12 Ehrlich's enduring merit is to have emphasized strongly that in these places the concept of the "jus civile" proper has been defined "in a manner that cannot be misunderstood." 13 From this, then, we learn that the specifically Roman idea of the unwritten law was that it consisted "simply of the interpretations of the jurisprudents." According to the Roman view, it is nothing more than the result of interpretation of the written law. "Dig. 7, 2, 2,5. 11 Dig. 7, 2, 2, 6. "Dig. 7,2,2, 12. "Ehrlich, "Beitrage zur Theorie der Rechtsquellen," I. Teil. Das "jus civile, jus publicum," etc. Berlin 1902, pp. 1 seq. But cf. also: Jhering, "Geist des romischen Rechts," passim; Kriiger, "Geschichte der Quellen und Literatur des romischen Rechts" (1886), pp. 26 seq.; Karloiva, "Romische Rechtsgeschichte" (1885), pp. 454 seq.; Joers, "Romische Rechtswissenschaft zur Zeit der Republik bis auf die Cato- nen" (1888), pp. 71 seq.; Sohm, "Institutionen" (13. edition, 1908), pp. 8 seq. (The last two named begin to show the influence of Ehrlich.) See also Pernice, "Zum romischen Gewohnheitsrecht," Zeitschrift der Savigny-Stiftung fiir Rechtsgeschichte, Romische Abteilung 20, p. 151; and Lambert, "La Fonction du droit civil compare," 1903, pp. 694 seq. 2] LEGAL HERMENEUTICS 151 As a matter of fact, this notion is of Greek origin. 14 It occurs especially in Aristotle, whose vo/uos aypa 4 Cf. Ulpianus, Digest 1, 1, 6, 1.: "Hoc igitur jus nostrum constat aut ex scripto aut sine scripto . ut apud Graecos: fuv v^iav ol /j^v eyypaoi " similarly, Inst. 1, 2, 3. Hirzel, "A-ypa^os v6juoj. (Abhandl. der philologisch-historischen Classe der Konigl. Sachsischen Gesellschaft der Wissenschaften 20, 1. Leipzig 1900); same, "Themis, Dike und Verwandtes," Leipzig 1907, pp. 359 seq.; Cathrein, S. J., "Recht, Naturrecht," etc. (1901), pp. 101- 102; also Voigt, "Das jus naturale," vol. 1, pp. 127, 175, 529, and vol. 4, p. 372; Pernice, "Parerga," Z. Sav. f. Rg. 22 (1901). pp. 82-95; Kraus, Griinhut's Zeitschrift, 32, p. 613. Cf. Aristotle, "Rhetoric," A. 10. 1368 b7, A. 13. 1373 b4; and espe- cially "Nicomach. Ethics," E 14, 1137. 152 KISS: EQUITY AND LAW [Cn.IV nature of the thing itself." Then he adds: "Now, where the statute reads generally but a case comes up that will not fit into these general expressions, one proceeds quite properly if, wherever the legislator has failed to provide therefor and by his general expression has committed a mistake, one corrects the omission in such a manner as the legislator himself would speak and legislate if he were present to witness the case." Thus equity is "an improvement of the statute where it commits a mistake by reason of its general expression." "This also is the reason why all things cannot be regu- lated by statute; for about some things it is not pos- sible to enact a law." 17 What the Greeks thus call eTrtei/ces SiWov is equivalent to the Roman "aequitas," the foundation of the celebrated 'interpretatio jurisprudentium," which according to Pomponius is identical with "jus non scriptum." 3. " A eqtiitas" and "Logical Exposition." "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 Kipp 18 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 ciricuces of Aristotle) by the term "aequitas" ("aequum et bonum, aequum, bona fides"). Equity is the necessary presupposition of correct inter- pretation. 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 i' "Nicomach. Ethics," loc. cit. chap. 14. >s "Geschichte der Quellen des romischen Rechts." Windscheid. "Lehrbuch der Pandekten," vol. 1, 28, p. 119. 3] EQUITY AND LOGIC 153 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 inten- tion of the law ("mens juris, constitutionis ratio, sen- tentia legis," etc.). 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 some- thing 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 interpreta- tion may be held a malicious perversion of the law /'Callidum versutumque jus, calumnia, nimis callida 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. Kriiger'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., 2, note 27, pp. 9-10. 2 l Cf. C. 1, 14, 1, where Roman " inter pretatio" is correctly under- stood 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." Dig. 1, 3, 29. Comp. also Paulus. 154 KISS: EQUITY AND LAW [CH.IV 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 interpretation 24 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. Of course, all this does not mean such arbitrary sub- jectivity 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. 4. History Continued: Later Roman Law. Unfor- tunately, the manner in which legal hermeneutics have "developed" in later times constitutes nothing better than a degeneration of this discovery of the Roman law. For the absolutism of the later Empire caused a radical change. Imperial omnipotence reserved to itself the interpretation of the law: "Inter aequitatem Significantly especially in Cicero, "Brutus," 145, 198; "De orat.," i, 292; "Pro Caecilio," 57, 65, 77; "Pro Mur." 27; "De officiis," i. 10. 33, etc. < Roman terms for this (see Kipp, loc. cit.): "stricta ratio" (Dig. 11, 7, 43); "strictum jus" (Fig. 5, 3, 50, 1; 3, 5, 30; 23, 2, 67, 1); "rigor juris" (Dig. 40, 5, 24, 10); "suptilitas juris" (Dig. 39, 5, 25); "suptilis ratio" (Dig. 8, 3, 11); or simply "jus" (Dig. 15, 1, 32 pr., 39. 3, 2, 6). 16 Regarding the value attached to the "intention of the legislator" by Roman jurists, cf. Kohler's excellent compilation in Griinhut's Zeitschrift, vol. 13, pp. 1 seq., note 2. Comp. also on this point, Regelsberger, "Pandekten," 35, p. 144, note 10; Austin, "Jurispru- dence," vol. 2, 1027; Kipp, loc. cit. p. 7, note 17. "Dig. 11, 7, 43. ' C. 7, 14, 7; cf. also Const, de Conf. Dig. c. 18. 4] LATER ROMAN LAW 155 j usque interpositam interpretationem nobis soils et oportet et licet inspicere." 28 This proposition proved exceedingly injurious for the manner in which the Glossators understood the matter. Their firm belief in the absolute authority of the Jus- tinian compilations of the law, their lack of historical knowledge, their scholastic habit of mind, and the exeget- ical manner of treating their subjects 29 all kept them from independently penetrating the problem of the application of the law, just as they were kept thereby from an unbiased consideration of the leading prin- ciples of interpretation. In regard to this theoretical problem, as regarding everything else, the statements found in the Corpus Juris were treated like obligatory rules and incontestable truths. Thus in administering the law nothing was considered legitimate except a reference of the matter to some citation in the Corpus Juris ("authentic interpretation"), and nothing left to the judge but a purely declaratory interpretation. Accord- ingly the judicial function consisted in nothing more than the preservation and scientific exploitation of the law as it actually stood. 30 This soon gave rise to the method of supplying new rules of law out of the existing system of legal rules. The first scientific and systematic treatment of this rule is found in Donellus. 31 His theory is properly the Tendencies in that direction may be found in Dig. 15, 1, 32, pr. ; Dig. 39, 3, 2, 5; in this connection, Windscheid, "Pandekten," vol. 1, 28, note 4, intimating that "the attitude of the jurist used to be much more independent than to-day." Contra, Kipp, loc. cit.; cf. also Pauly- Wissawa, loc. cit. "Brie, "Gewohnheitsrecht," vol. 1, 96-97. * Cf. Stintzing, "Geschichte der deutschen Rechtswissenschaft," vol. 1 (1880), pp. 102 et seq.; Landsberg, "Die Glosse des Accursius," p. 25: "the purely deductive and strictly logical procedure which may be called particularly 'dialectics'"; cf. also Brie, loc. cit.; further, Folk, "Die Analogic im Recht," 1906, 24 et seq. si "Comentarii de jure civili," lib. 1, c. 13, 1. seq. 156 KISS: EQUITY AND LAW [Cn.IV foundation of that traditional and accepted "logical exposition" which was later developed especially by Savigny. In sharp contrast to the Roman idea of "aequitas" this theory sanctions the notion that there are no omissions in the positive law, that the original and unchanged intention of the legislator is to be sought, and further, that for applying the law, formal dialectic logic suffices. 32 This method was especially followed by the Law of Nature school. In the face of their own fundamental principle, 33 even the most radical protagonists of the Law of Nature advocate the identical logical method which we find among the glossators and commentators. The historical school of jurists likewise, as far as our present problem is concerned, did nothing more than continue the doctrine of logical and pragmatical exposi- tion. It was but lately that the traditional doctrine was elaborated, by Savigny and his eminent followers, into a complete theoretical system. "The days of this school 8 Among the immediate successors of Donnellus (1527-1591) may be named especially: Forster, " Inter pres sive de interpretation juris libri duo," lib. 2, c. 12 seq. (cited from Otto, "Thesaurus juris Romani," vol. 2, 1733). In regard to the hermeneutics of the canon law, which on the whole has the same result, cf. Reiffenstuel, "Jus canonicum universum," vol. 1, passim; and Schulte, "Geschichte der Quellen und Literatur des canonischen Rechts," vol. 1 (1875), 212-220. 33 According to the principles of this school, the law of nature, con- stituting the highest authority, ought to be acknowledged at least as subsidiary law. Obviously the method of interpretation appropriate to this point of view would be one in which the formulated law is supple- mented from the outside, by means of the law of nature (cf. Pfaff- Hofmann, "Comment.," vol. 1, 194 seq.)- In practice, however, this theory is never seriously applied. Even the most radical adherents of the theory, when they come to deal with interpretation in detail, present the same "dialectical method" we found above. Cf. Pufen- dorf, "De jure rationali et gentium," vol. 5, 12; alsoZeiller, "Comment, zum 6st. BGB," ad. 6-7, who does not only defend all the fundamental principles of the traditional method but even calls the application of the famous section 7 "exceedingly problematical" (loc. cit. vol. 1, p. 66); cf. further, Winivarter, "Das osterreichische biirgerliche Recht," vol. 1 (1831), p. 82, note 2. See also Cluck, "Pandekten," vol. 1, 205-301, and Rotleck-Welcker, "Staatslexikon," 517-518. 4] LATER ROMAN LAW 157 are numbered," says Gmiir, 34 but in the textbooks of the Civil Law and of the German Givil Code, as well as generally in systematic treatises on private law, its teachings still figure as the accepted doctrine. 35 How- ever, what we have said above shows plainly enough that this is not the Roman manner of applying the law but merely a degenerate form thereof. Such formal logic was alien to, nay, even despised by Roman jurists. It is the product of a development which gradually deviated from the fundamental idea of the Roman administration of the law. 5. The Modern Problem. No doubt can exist, therefore, that primarily a judicial practice which cor- responds more closely to the needs of actual life may be obtained by a return to the Roman principle. It must not be a question of working toward a "more independent position" of the judge. "There is so much talk about the difference existing between the functions of the modern and the Roman lawyer as regards the evolution of the law. It is claimed that the work of the latter constituted one of the sources of the law, while this function is denied to the labors of the former. In this there is at least some exaggeration, against which a protest should be raised, because it carries with it certain practical dangers." 36 The true problem is merely that of applying better methods in the use of powers which the judge already possesses. 4 Gmiir, "Die Anwendung des Rechts," p. 9. Among many, cf. especially: Windscheid, loc. cit. 22 et seq.; Thai, "Einfiihrung," etc.; Regelsberger, loc. cit. 35; Dernburg, "Pan- dekten." On recent works in Austria, cf. Pfaff-Krainz-Ehrenzweig, "System des osterreichischen allgemeinen Privatrechts," vol. 1 (4 ed., 1905), pp. 42 seq. For French literature, comp. Laurent, "Cours ele- mentaire," p. 15: "On ne doit jamais separer 1'esprit de la loi de son texte . . . le texte et 1'esprit . . . c'est une seule et meme chose: la volonte du legislateur." Regelsberger, "Streifziige," p. 16. 158 KISS: EQUITY AND LAW [Cn.IV Like the Roman jurists, so should we also formulate and explain scientifically the method which makes possible the kind of judicial law described above, which must necessarily arise in the course of administering justice. We ought not "to represent as something theoretically impossible that which practically arises in a continuous current and is found quite indispen- sable." 37 6. The Problem of Unprovided Cases. This manner of putting the question takes us back unavoidably to the concept of cirietKcia 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 appre- ciation 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 con- scious appreciation of their consequences. Drawing too sharp a dividing line between "passive interpretation" and "supplying of omissions," he tries to explain the > 7 Aristotle; see notes 16 and 17 supra. Kipp, note in Windscheid's "Pandekten," vol. 1 28, 121. ' " 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. 6] UNPROVIDED CASES 159 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 demarca- tion 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 40 Geny, loc. cit. 457 seq., 580 seq. For a critical appreciation, see Perceron, in: Annales de droit commercial et industriel frangais, 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. Valuable suggestions on this point especially in : Kohler, in Griinhut's Zeitschrift, vol. 13 seq., Jhering's Jahrbiicher, vol. 25, pp. 270 seq., and "Lehrbuch des biirgerlichen Rechts," vol. 1, pp. 122 160 KISS: EQUITY AND LAW [Cn.lV 7. Free Legal Decision, Next came the school of "free judicial decision," which in appearance took to heart what has been said here and attempted to eluci- date scientifically the "mysterious saying," "La loi n'est pas le droit." Its adherents start from the proposi- tion that a statute does not contain a comprehensive rule for the decision of cases. According to this school there are nothing but "specific decisions." The applica- tion of a statute should be limited, therefore, "to those cases which the statute itself decides." The statute is to be resorted to first, but only in those cases which it mentions specifically. In all others there is to be a "truly free" manner of decision. 43 Such a notion as this, however, does not get us much further than the existing doctrine. In the first place, Fuchs goes too far when he conceives all statutory provisions as "specific decisions." The statute never decides a specific case but establishes general rules. 44 Precisely for this reason it is not possible to draw a sharp distinction between statutes that provide for all cases and those that contain "gaps." The line is seq. Also: Biilow, "Gesetz und Richteramt," pp. 41 seq. : Hartmann' in: Archiv. Ziv. P., vol. 73, pp. 309 seq., 400 seq.; Zitelmann, "Die Rechtsgeschafte," pp. 1 seq., "Kunst der Gesetzgebung," Dresden, 1904, pp. 40 seq. 4S Expressed in the most radical and exaggerated manner by Fuchs, "Recht und Freiheit in unserer heutigen Justiz" (Berlin, 1908), pp. 14, seq., and again: "Die Gemeinschadlichkeit der konstruktiven Juris- prudenz" (Karlsruhe 1909), especially pp. 75 seq.; comp. also Gmelin, "Quousque!" (Hannover 1910); Sinzheimer, "Die soziologische Methode" (Munich, 1909). Contra: Duringer, "Richter und Recht- sprechung" (1909, and also in the paper "Eine neue Methode," etc., in Das Recht, 1909. Cf. alsoOwe* loc. cit. (note 1). 44 In principle this is true even of statutes drawn so as to cover specifically the various cases, and still more so our modern statutes. In these it seems entirely proper "to adhere to the principle of progress- ing beyond specific provisions toward general rules." (Huber, "Erlau- terungen zum schweizerischen Zivilgesetzbuch," 1902, p. 24.) Comp. also: Gmiir, loc. cit. pp. 27-28; Biilow, loc. cit. pp.30 seq.; Geny, "La Technique legislative," in "Livre du Centenaire du Code Civil," vol. 2, pp. 989 seq. 7] FREE LEGAL DECISION 161 altogether vague. A statute is never likely to contain an absolutely exact and direct decision of a case as it arises, for there will always be some features with which the abstract rule of law cannot concern itself. For these a supplementary rule of specific application, established by the judge, seems to be absolutely necessary. The distinction made by Fuchs, according to which the statute is to be limited to the decision of cases for which it specifically provides, is therefore erroneous in theory and cannot be carried out in practice. We should rather say that the general framework furnished by the statute is to be filled in, for each case, by means of interpretation, that is, by following out the principles of the statute. 45 In every case, without exception, it is the business of the court to supply what the statute omits, but always by means of an interpretative function. It is, in fact, the urgent task of legal science to establish in an exact and practical manner the fundamental principles of the proper method by which the courts may supply such omissions. 8. The True Method. The most important contri- butions toward this object were first offered by von Billow. 46 The significance of his position must be sought not only in the fact that he first attacked the dogma, uncontroverted theretofore, according to which the courts had nothing to do with lawmaking, but especially in his scientific exposition of judicial law, which he declares to be a command of the State establish- ing rules of law. 47 In this manner he has tried to inves- tigate and expound the significance of judicial law as supplementary to statutory law. 45 Comp. the very apt remarks of Neukamp, in "Juristisches Litera- turblatt," vol. 20, p. 146. "Gesetz und Richteramt," pp. 35 seq., 45 seq. 47 Comp. also his "Gestandnisrecht" (1899), pp. 130 seq.; and "Heitere und ernste Betrachtungen iiber die Rechtswissenschaft" (1901), passim. 162 KISS: EQUITY AND LAW [CH.IV Official legal science, however, has quietly passed by this exceedingly valuable essay. It was but quite recently that his ideas found appreciation and were further developed, 48 but such appreciation means an acknowledgment, scientifically and officially, that there is such a thing as courts making law, and that the supply- ing of gaps by adjudication is one of the sources of law. 49 A detailed discussion of these propositions would exceed the limits of space at present at my disposal. Consequently I leave to some other occasion their utilization for an elaborate theory of legal sources. Yet I may be permitted to sketch the outlines of the correct method of studying the manner of applying the law. 9. Reasons for Gaps in the Statutes, The fact that statutes commonly fail to provide for some cases that will arise may be analyzed as follows : a. There are gaps in a narrow or technical sense when there is a lack of detailed, abstract rules by which a submitted case may be decided. b. The framework given by the text of the statute may not be filled in when the text does express all that can be said in general terms 60 yet does not furnish rules for individual cases directly but refers, explicitly or by implication, to some other source of law. **Biilow, loc. cit., in: "Das Recht," vol. 10, pp. 770 seq. Cf. especially Gmiir, "Die Anwendung des Rechts," pp. 71-80; Danz, "Die Auslegung der Recht sgeschafte," (2d edition, 1906), and "Jhering's Jahrbiicher," vol. 50, pp. 1 seq.; Wendt, "Die exceptio doli generalis," etc., in Archiv. Ziv. P. vol. 100,' pp. 1 seq., and especially p. 101; Stier-Somlo, "Das freie Ermessen, in: "Festgabe fur Laband," 1908, pp. 447 seq.; Oertmann, "Gesetzeszwang," etc., loc. cit. (note 1). While Gmiir deals principally with the need of individualizing and making more concrete the abstract rules of law, the other authors men- tioned treat especially of the changeability of certain imported juridical concepts, such as good faith, business customs, circumstances of the case, and show how they should be interpreted, according to the prin- ciple of "aequitas," so as to fit the varying needs of business life. *o Comp. Zitelmann's fundamental observations, which are at the basis of the whole theory of "gaps in the law," in his well-known treatise "Liicken im Recht" (1903), pp. 30 seq. 9] GAPS IN THE LAW 163 Under this head, the following subdivisions may be distinguished: a. Express reference to some other source of law, and under this: aa. Reference to the discretion of the court. 51 bb. Reference to an unwritten yet objectively ascertainable rule (e.g., good faith, considering the custom of the trade). 52 b. Tacit reference by means of what has been called 53 the statutory concepts of value. 54 In such cases also judicial interpretation makes law on the basis of "aequi- tas." For statutory provisions, as Kipp very properly emphasizes in regard to Roman "aequitas," are for the most part "drawn in such a manner that one cannot conceive at all of their application without the inter- vention of equitable discretion, for the reason that they operate constantly with concepts taken from life without " Cf. Zitelmann, "Liicken", pp. 29 seq. Oertmann, loc. cit. pp. 19 seq. Legal consequences are provided generally by the statute, but the measure is fixed in each individual case by the court. An illustration is the fixing of a criminal sentence within the limits given by the statute, where there can be no review of the judicial discretion of the court. "Typical illustrations are found in sections 157, 242, BGB; comp. the detailed discussions by Danz, loc. cit.; Wendl, loc. cit.; and Oert- mann, loc. cit. " For elucidation of these concepts, see Zitelmann, "Kunst der Gesetzgebung" (Dresden, 1904) p. 40; Stier-Somlo, loc. cit. p. 471, seq.; Oertmann. loc. cit., especially p. 13 seq., and note 8, p. 46. M In such cases it appears as if the statute had expressed everything exhaustively and in detail, yet it turns out that the terms and concepts used need to be furnished with concrete contents. The terms them- selves are nothing but more or less insufficiently filled outlines. There is nothing better than a rudimentary rule, yet one capable of being objectively ascertained, because the statute refers implicitly to matters (like business usages and similar things) which in practical life are generally understood. Such subsumptions are properly subject to revision on appeal. (Oertmann, loc. cit.; Zitelmann, loc. cit.) This sub- ject has been touched upon by authors, but its true importance has hardly been appreciated. Comp. especially Ehrlich, loc. cit. in Burian's Juristische Blatter, vol. 17, p. 447; same author, "Die stillschweigende Willenserklarung," p. 293; "Freie Rechtsfindung," pp. iii-vi; "Tat- sachen," pp. 26 seq.; Zitelmann, "Liicken," pp. 45-46; p. 32, note 18. Comp. alsoLaband, "Staatsrecht," vol. 1, 57, 'iiii. 164 KISS: EQUITY AND LAW [Cn.lV themselves analyzing them." 55 Properly they express their intention by indirection only. 56 In such cases the Court is bound, to be sure, by the statute, but finds in it only the raw material of actual rules, and it is his business out of this to fashion the actual rules. In this connec- tion Danz says aptly that usages of business recognized in accordance with the Code 57 are "rules of customary law sanctioned by the statute" itself. 68 Of themselves such rules are not law they become such by the action of the Court in recognizing them pursuant to the express or implied reference to them found in the statute. In either case, both where there are technical gaps and where the framework of the statute is empty, there must be, for the decision of concrete cases, the supple- mentary function of the judges based on the principles of justice ("aequitas"). It will be the mission of a future theory of the sources of law to supply the proper appreciation, corresponding to its importance, of the judicial law so arising as an integral portion of the body of law in force, and as a most valuable element of the law actually administered. " Kipp, "Geschichte der Quellen," p. 11. In such cases the statute refers, expressly or by implication, to some other source whence the rule may be drawn. (Comp. Gustav Schwarz in the Hungarian magazine "Jogallam," vol. 6, p. 99.) In the great majority of cases, this "other source" consists of the kind of social phenomena we call "popular customs." These are simply institutions of social life produced spontaneously and changing from time to time without the interference of official legislation. (Laband, loc. cit. p. 553.) The vague provisions of a statute mentioned in the text (in the present sense, all legal concepts are vague) are capable of being filled with con- crete contents by reading them in the light of such social phenomena. We have in mind not merely what has been called "safety-valve con- cepts," which modern draftsmen of statutes use to make the statute more elastic; we rather refer to any statutory term, the concrete mean- ing of which depends on the changing circumstances of practical life. ("The nature of the case," so called; comp. Ehrlich, in Harden's "Zukunft." vol. 14, p. 234.) "BGB 242. **Danz, "Die Auslegung der Rechtsgeschafte," p. 101. 9] GAPS IN THE LAW 165 A theory of legal sources that pays attention to the law as it really is cannot possibly disregard the existence of judge-made law. Such law does actually exist, and theoretical inquiry simply has to recognize and utilize it. This will be done if we divide all rules of law into statutory rules of general obligation on the one hand, and judicial or supplementary rules obligatory in the specific case. The former represent "law" in its strict sense, the latter equity as understood by the Greek or the Roman "aequum." 166 BEROLZHEIMER: EMOTIONALISM [CH.V SENTIMENTAL ADMINISTRATION OF JUSTICE: ITS RELATION TO JUDICIAL FREEDOM OF DECISION BY FRITZ BEROLZHEIMER l 1. "FREEDOM OF JUDICIAL DECISION" IN SUBSTANCE NOT A NEW IDEA. 2. "JUSTICE BASED ON THE ADJUST- MENT OF INTERESTS" AN UNTENABLE STANDARD. 3. "FREE APPLICATION OF LAW" EQUIVALENT TO DECISION AGAINST THE ESTABLISHED RULE. 4. "FREE- DOM OF JUDICIAL DECISION" TO BE APPLIED ONLY IN ACCORDANCE WITH LEGAL PRINCIPLES. 5. THE PRINCIPLES OF "FREEDOM OF JUDICIAL DECISION" GROW OUT OF HISTORICAL AND ECONOMIC CONDITIONS. ! 6. THE BASIS OF "FREEDOM OF DECISION" IS THE IDEA OF LIBERTY, i.e., THE ELIMINATION FROM THE LAW OF ALL OPPRESSIVE ACTION. 1. "Freedom of Judicial Decision" in Substance not a New Idea. Regarding the propositions commonly comprehended under the term "freedom of judicial decision" 2 there seems to-day to be a consensus of 1 [Author of "System der Rechts- und Wirtschaftsphilosophie"(5 vols.), the second volume of which has been translated in this Series under the title "The World's Legal Philosophies." The translation is from the essay entitled "Die Gefahren einer Gefiihlsjurisprudenz in der Gegen- wart," Berlin, 1911, Rothschild. The translator is Ernest Bruncken.] tCeny, "Methode d' interpretation et des sources en droit prive positif," Paris, 1899 ("libre recherche scientifique"), pp. 457 seq., 580 seq. Further, Ehrlich, "Liicken im Recht," In Burian's Juristische Blatter, vol. 17, pp. 417 seq.; Ehrlich, "Freie Rechtsfindung und freie Rechtswissenschaft," Leipzig 1903; Wurzel, "Das Juristische Denken," 1] JUDICIAL FREEDOM NOT NEW 167 opinion to this extent, that the great majority of law- yers wish to see the courts emancipated from the letter of the law, at least in cases where the application of the established rule would imply unjust harshness, or even where it merely appears inequitable. Ulpian's maxim: "... durum est, sed ita lex scripta est" is to be converted into its opposite. It would seem, therefore, that there is substantial unanimity about the desirability of "freedom of deci- sion," except for a few extremists and some all too strict believers in the letter of the law. But we are far from finding a clear understanding of the theoretical nature of such freedom, looked at (if I may use the term), from the standpoint of legal philosophy; and there is still less comprehension of the legal inferences and actual consequences that will follow from the new spirit; or of the dangers which the vagaries of court decisions may introduce, especially in Germany. Finally, least of all, is there any certainty as to the principles accord- ing to which the courts are to decide after they have been freed from the fetters imposed by the "intention of the legislator." The expression "freedom of judicial decision" is indeed of recent date; but the thing intended to be expressed thereby is, in substance, nothing novel. The courts have never shown themselves to be mere Vienna 1904; Cruet, "La Vie du droit et 1'impuissance des lois," Paris 1908; Fuchs, "Die Gemeinschadlichkeit der konstruktiven Jurispru- denz," Karlsruhe, 1909. As far back as 1886, Kohler argues strongly against the view that every decision must be based upon an express statute (Griinhut's Zeitschrift, vol. 13, pp. 1-61, p. 49). Compare also, quite recently, Rolin, "Prolegomenes a la science du droit," Brussels and Paris, 1911. (Rolin advocates sociological jurisprudence. It is not the "intention of the legislator" that changes the law but rather "tout le droit est coutumier." Penal laws, if too harsh, may remain ineffectual because the courts will not apply them. Loc. cit. pp. 116-118.) Similarly Cruet, loc. cit. p. 252 ("La mort naturelle des lois; la desuetude"). 168 BEROLZHEIMER: EMOTIONALISM [Cn.V worshipers of the letter, barring certain periods of imperfectly developed judicial activity. The degree of ireedom exercised has differed widely, according to the character of the legal rules actually in existence and the' prevailing opinion regarding the duty of judges. In periods when legislation was sluggish, in jurisdictions where the formulated law 3 was very fragmentary, and whenever the judges entertained exalted notions of their office, the constant practice of the courts has treated existing rules with a vigorous freedom which to-day seems hardly credible. One need but remember the "aequitas"of the Romans; further, the reception of the Roman law in Germany; the refusal to apply the Dra- conian provisions of the "Carolina" 4 on the ground that the practice of the courts had made them obsolete ; the decision of doubtful questions in international law up to recent times; the free judicial interpretation of the French practice and of the Anglo-American judi- ciary; the decisions based on analogies in our own courts; and the verdicts of our lay judges that are so often based on a mere sense of justice. While thus we see that everywhere the position of the judge is relatively unfettered, it may on the other hand be easily believed that little encouragement to a free movement of judicial method would be expected of a code going into detail to the extent employed in the "Preussische Landrecht" or of a doctrine directing the court, in doubtful cases, to follow "the intention of the legislator." '[TRANSLATOR'S NOTE: "Gesetzesrecht," which comprises all law actually promulgated, whether as statute or other written law, or court decisions, or generally accepted opinions of writers. It excludes those rules which, according to the theory of Anglo-Saxon judicial interpre- tation are indeed implied in the existing body of legal rules but have not yet been formulated.] 4 [TRANSLATOR'S NOTE: The criminal code adopted for the Empire under Charles \'.\ 1] JUDICIAL FREEDOM NOT NEW 169 Thus, in former times and other countries, "freedom of judicial decision" was exercised when there was need for it, on the basis of legal tact, without saying much about it and without worrying how such practice "praeter legem" and even "contra legem" might be theoretically justified (either in the law of procedure or in constitutional law). At the present time, however, the claims of "freedom of judicial decision" are put forward vocifer- ously and insistently as new demands. One might be inclined to explain this change by saying that the present epoch possesses a greater receptivity for matters of legal philosophy and methodology. Yet this cannot be the principal reason; for in prior epochs, which felt greater interest in legal philosophy, this problem was avoided or disposed of in a few words. 2. "Justice Based on the Adjustment of Interests" an Untenable Theory. In the days of the Law of Nature theory, when people believed in a natural law over and above positive law, the judge decided according to this Law of Nature whenever he modified a positive rule. Consequently his decision "praeter" or "contra legem" could not give rise to any particular problem. This is still the case in decisions according to the unwritten law, in Anglo-American jurisprudence. When faith in this higher law as given by Nature began to wane, the "intention of the legislator" became a welcome substitute. A distinction was drawn between statutory and customary law 5 ; in default of a basis of custom the decision had to be fitted into some statute as best it might. To that end the judge reverted to what the legislator was supposed to have intended, or what at least he might have intended. This presumptive 5 Development of law by "convention" is but a sub-species of statu- tory law. Comp. my "System der Rechts- und Wirtschaftsphilosophie," vol. 3 ("Philosophic des Staates"), Munich, 1906, pp. 325-331. 170 BEROLZHEIMER: EMOTIONALISM [CH.V intention became the actual intention of the legis- lator. Modern judicial interpretation, however, is not satisfied to do this. The intention of the legislator proves to be a fiction, and the judges, anxious for some- thing to lean on, cast about for a new support. One theory maintains that such support is offered by a "jus- tice based on the adjustment of interests." 6 This theory of "adjustment of interests" demands that the judge proceed in analogy to the legislator by a careful weighing of all the interests affected. However, even if we were to overlook entirely that the interests to be weighed would be mostly of an imponderable charac- ter, especially in the various fields of public law (crim- inal, political, administrative, international, and ecclesi- astical law) is it at all correct, historically, that law Compare Stampe, "Rechtsfindung durch Konstruktion," Deutsche Juristenzeitung, vol. 10, 1905; pp. 417-422; "Rechtsfindung durch Interessenwagung," in Deut. Juristenztg., vol. 10, pp. 713-719 ("in- terests found worthy of protection" are to be decisive, loc. cit. 417, 717); "Gesetz und Richtermacht," in Deut. Juristenztg., vol. 10, pp. 1017- 1022. Mueller-Erzbach, "Die Grundsatze der mittelbaren Stellver- tretung aus der Interessenlage entwickelt," Berlin, 1905 ("Real method of law formation"). Rumpf, "Gesetz und Richter," Berlin, 1906, pp. 81-87 ("Finding values," and "Weighing of values"). Compare further: Heck, "Die Fortbildung des biirgerlichen Rechts im Wege der Rechtsverordmmg," in 46. Jahresbericht der Juristischen Gesellschaft zu Berlin, 1906, pp. 72-84. (Contra Stampe, loc. cit. p. 79.) Heck, "Interessenjurisprudenz und Gesetzestreue," Deut. Juristenztg., vol. 10, pp. 1140-1142. "Was ist diejenige Begriffs- jurisprudenz, die wir bekampfen?" in Deut. Juristenztg. 14, pp. 1457- 1461. (Page 1460: The main task of administration of the law is to inquire into the connection between legal rules and the condition of interests, in other words: the investigation of interests.) CONTRA: Landsberg, "Das entgegengesetzte Extrem?" in Deut. Juristenztg, vol. 10, pp. 921-925. Vierhaus, "Die Freirechtsschule und die heutige Rechtspflege," Deut. Juristenztg., 14, 1909, pp. 1169-1175. Comp. a.\soM.Rumelin, Address: "Bernhard Windscheid und sein Einfluss auf Privatrecht und Privatrechtswissenschaft," Tubingen 1907, p. 24. According to Regelsberger, "Gesetz und Rechtsanwendung," Jher- ing's Jahrbiicher, 58, 1910, pp. 146-174, "the judge is indeed bound by the existing rule," but Regelsberger distinguishes, primarily in private law, between inflexible rules of law, incapable of development by jurists, for instance 90, 253, 246, 656, 762-764, 1297 BGB; and legal rules capable of development (loc. cit. pp. 155 seq.). 2] ADJUSTMENT OF INTERESTS 171 is the outgrowth of a balancing of the interests and needs of the various sections of a commonwealth? On the contrary, has not rather each substantial and funda- mental change in the law been the result of a struggle and the victory of one part of the community over the other a struggle, to be sure, under the banner of a more modern and advanced idea of justice, and a victory of law purified over a stagnating condition that had come to be felt as unjust? The great gains for freedom during the centuries since the end of the middle ages were only obtained by the assumption of new powers on the part of those formerly subject to power, and not uncommonly by threats of force, or actual use of force. Such was the process which led to the liberation of secular concerns from ecclesiastical oppression; the political emancipation of the middle classes; the raising of the peasantry from serfdom; the giving of political equality to the Jews; the economic freeing of the propertyless workingmen; and finally, quite recently, the social and professional emancipation of women. 7 And similarly, it is changes in cultural or social points of view, and in substantial relations of power or economic conditions, that have opened the way for newly arisen or transformed legal notions, when for instance criminal law and pro- cedure, from the Caroline to modern days, were changed radically and now again seem to need reform ; or when in the future intercourse of nations the idea of arbitration takes the place (as it ought) of diplomatic intrigues; or when through the increase of economic relations beyond the national boundaries it becomes desirable to unify commercial laws or patent and copyright laws. 7 Comp. my "System der Rechts- und Wirtschaftsphilosophie," vol. 2 ("Die Kulturstufen der Rechts- und Wirtschaftsphilosophie"). Munich, 1905; vol. 3 ("Philosophic des Staates"), Munich, 1906. 172 BEROLZHEIMER: EMOTIONALISM [CH.V In all such cases the legislator has nothing to do with the "weighing of needs or interests," and could do nothing with it. And the courts quite as little. Just as well, or just as ill, as on the basis of the "justice based on needs or interest" might cases be decided by the throw of dice. The "justice based on needs or interests," which in the last analysis may be reduced to Jhering's utilitarian theory, 8 offers an erroneous standard for the weighing of the unweighable. Moreover, it puts profit and advantage in the place of right and justice, so that the function of doing justice would be degraded to a mere act of administration. Thus it signifies in reality the exact opposite of what it believes and claims to be. 3. "Free Application of Law" Equivalent to Decision Against the Established Rule. When is this "free applica- tion" by the court to take place ? The generally accepted opinion to-day inclines toward saying: The court may and should expound the law freely "praeter legem," but to allow a free application of law "contra legem" would amount to a straining of judicial power. As against that, one should inquire whether in reality an exposition according to the principles of "freedom of decision" can ever be merely "praeter legem," or whether it does not always take place against the formulated rule. Does the decision of the freely expounding judge simply supply a rule where none existed before, or are there no cases at all that are not covered by an existing rule? The most searching inquiries into this subject are undoubtedly those of Bergbohm 9 and Zitelmann. 10 Bergbohm, in his radical opposition to the doctrine of the Law of Nature, tries to prove the unbroken unity of the law by invoking the "power of logical expansion" * J her ing, "Der Zweck im Recht," 4. edition, Leipzig, 1905. "Jurisprudenzund Rechtsphilosophie," I, Leipzig, 1892, pp. 371-393. ""Liicken im Recht," Bonner Rektoratsrede vom Oktober, 1902 Leipzig, 1903. 3] SOURCES OF FREE DECISION 173 of the established law. 11 Bergbohm's exposition itself has a logical unity of its own; but it starts from the assumption that all external relations not governed by established rules would drop into a "legal vacuum," no matter "how strongly they may call for legal regula- tion." 12 But though German law, for instance, failed for a long time to adopt a specific rule for railway- accidents liability, and though to this day it has failed to enact specific laws regarding cartels and trusts, yet these matters did not "drop into a legal vacuum." On the contrary there is a rale for these matters, but a rule obnoxious to the sense of justice of our times. Here is where Zitelmann's view offers us sound pre- mises. He shows that (usually) the so-called "unprovided case" in law is not really unprovided for in the sense that there is no legal standard for the decision of such a case. "Rather, the truth is simply this, that in cases like that under discussion an exception is invariably made to some existing general rule. The status of such cases is that an exception from the general rule ought to have been made and this exception is based on that which one considers the purpose of the general rule. . . . Thus we see why there is talk of unprovided cases: The lack of provision consists in no exception having been declared for cases of this special character." 13 The court evidently in such cases decides not "praeter legem" but "contra legem." 14 Ji " Jurisprudenz und Rechtsphilosophie," p. 387. Contra: Jung, "Von der logischen Geschlossenheit des Rechts," Berlin, 1900, pp. 131-157; Stammler, "Die Lehrc von dem richtigen Rechte," Berlin, 1902, pp. 271-275; Riimelin, "Das schweizerische Zivilgesetzbuch und seine Bedeutung f iir uns," Tubingen, 1908, pp. 29 seq. ""Jurisprudenz und Rechtsphilosophie," p. 387. "Liicken im Recht," p. 23. uZitelmann, loc. cit. pp. 24 seq. "The supplying of rules for unpro- vided cases means that the court breaks through the general rule for this special state of facts, and finds a new rule, usually a further development of other special rules already in existence." 174 BEROLZHEIMER: EMOTIONALISM [Cn.V Of course this explanation does not apply when a statute expressly directs the court to decide according to good conscience, or according to the custom of busi- ness or trade. Here the law refers the judge to custom or equity as the material from which to frame his deci- sion; but the source of the judgment is still the formal statute. 15 In the genuine case of adjudication based on the prin- ciple of freedom of decision, the judge derives his judg- ment from a source of which it is admitted : 1. That it is not statutory law. '2. That it is not customary law. 3. That it is superior to the formulated law. Thus the question, What is the source of this "liberty of judicial decision"? gives rise necessarily to the further question: What is the legal status of the judicial func- tion, according to this theory of "liberty of judicial decision"? To that question we now turn. 4. "Liberty of Judicial Decision" May Be Exercised Only in Accordance with Legal Principles. It is frequently argued that a judge deciding according to "liberty of judicial decision" is changing the established law, and consequently exercises a quasi-legislative function. 16 15 Consequently it may easily lead to misconceptions if in cases of this kind one speaks of "judge-made law" or "judicial rules." Thus Danz, "Riickstandigkeit der Rechtswissenschaft, Richterrecht und Gesetzesrecht : Neue Rechtsprechung," in Deutsche Juristenztg. 1911, no. 8, pp. 565-570. The fact that Danz himself and correctly does not consider the court as a maker of law, with quasi-legislative functions, appears from his observation (loc. cit. p. 566, note 2a) : "These are customary rules sanctioned by the statute (BGB)." Compare also: "Danz, "Die Auslegung der Rechtsgeschafte," 3d edition, Jena, 1911. 'Thus, with particular acuteness: Schlossmann, "Der Irrtum liber wesentliche Eigenschaften der Person und der Sache nach dem biir- gerlichen Gesetzbuch," Jena, 1903, pp. 34^3, 36-39. Sternberg "Allgemeine Rechtslehre," 1, Leipzig, 1904, p. 138, seq. (No sub- stantially definable boundary between legislation and interpretation.) Saleilles, "Einfiihrung in das Studium des deutschen burgerlichen 4] SOURCES OF FREE DECISION 175 That, however, is quite a mistake. 17 In such cases, no less than in others, the court is aiming merely to render justice between contending parties, and by no means to enact a new administrative regulation. The purpose is to decide on the basis of some source of law supposedly already in existence, irrespective of where it is to be found or how applied. But, conceding this, is it then correct to maintain, as Zitelmann does, that there is a general maxim to this effect: "The law is whatever is found in this statute, but with certain qualifications (extensions and restric- tions) to be found by analogy, etc."? 18 This attempt at solving the problem will not hold water. 19 For every statute purports to be in full and complete force, and if its effect is held to be in any way qualified, either this qualification must be expressed in the statute itself, or there must be a source of law superior to the statute. There must exist, then, a higher order of justice, no matter how scant in its data of materials, from which the court may derive both its authority to Rechts" (in: Leonhard's "Studien zur Erlauterung des biirgerlichen Rechts," Heft 14), Breslau, 1905, p. 91. Compare also: Saleilles, "De la personnalite juridique"; Paris, 1910, p. 27: ". . . The directions for the creation of a foundation should be interpreted as the creator of it would interpret them if he were there, in order to accomplish the end he had in view." Compare, further, the excellent expositions of Kohler, "Ueber die Interpretation von Gesetzen," Griinhut's Zeitschrift, vol. 13, 1886, pp. 1-61. 17 Correctly expressed by Zitelmann, "Liicken im Recht," p. 26- Excellently by Jung, "Von der logischen Geschlossenheit des Rechts," Berlin, 1900, pp. 146-148. Compare regarding this question, also Saleilles, "Einfiihrung in das Studium des deutschen biirgerlichen Rechts," p. 95. is Zitelmann, "Lucken im Recht," p. 26, with a reference to a pro- vision of this sort in the first draft of the BGB. * Nor is a solution offered by saying cleverly: "The code is an instrument of development, not of ossification." (Saleilles, "Einfuh- rung in das Studium des deutschen Rechts," p. 100.) For the code is the fixed result of a course of development, and as such it is indeed an obstacle to further development. 176 BEROLZHEIMER: EMOTIONALISM [CH.V decide according to the principles of "liberty of decision," and also those principles themselves. The judge must have some such foundation if he is to administer justice, if his decision is to be justified, both in his own con- science and in the eyes of the world, as a decision accord- ing to law. In no other way could the community escape that uncertainty of law which is properly regarded as an objection to the demand for "liberty of judicial decision." 20 Hence the only conceivable alternative is that there are principles of law outside of the formu- lated rules of law. But is not this (one may ask) a return to the Law of Nature? By no means. Our relation nowadays to the Law of Nature is somewhat analogous to that between the alchemist and the most modern doctrines of chemistry, according to which the transmutation of particular elements into others appears possible. Like the modern chemists, we once more adopt, from a higher standpoint, in the light of recent discoveries, the available portions of earlier doctrines which during the intermediate period had been rejected altogether. The fundamental error 20 Thus Heck, "Die Fortbildung des biirgerlichen Rechts im Wege der Rechtsverordnung." In "46. Jahresbericht der Juristischen Gesell- schaft zu Berlin," 1906, p. 78; Landsberg, "Das entgegengesetzte Sys- tem," DJZ vol. 10, pp. 921-925. (On page 925: "Law has for its purpose certainty and stability.") Compare further Laband, "Rechts- pflege und volkstiimliches Rechtsbewusstsein," DJZ vol. 10, pp. 10-15. See also, very recently, Del Vecchio, "Sulla positivita come carattere del diritto" (Prolusione al corso di Filosofia del diritto, letta 1* 11. feb- braio, 1911, nella R. Universita di Bologna), p. 17: "The pretended free- dom in the application of the law would in effect, besides being a theoret- ical inconsistency, constitute a permanent menace to the legal liberty of the citizens, which finds one of its principal conditions in the certainty and especially in the unshaken supremacy of the law." On this point and on the further one that even the "extreme adher- ents of freedom of decision," like Ehrlich (Rumpf), Stampe, Gnaeus Flavins (Kantorowicz) and Fuchs, desire merely to find rules for un- provided cases, in other words, hold freedom of decision proper merely "praeter," not "contra legem," see: Kantorowicz, "Die Contra-legem- Fabel." In: Deutsche Richterzeitung, 3, no. 8, of April 15, 1911, pp. 258-263. 4] SOURCES OF FREE DECISION 177 of the Law of Nature consisted in this, that it believed in an eternal model of law, rigidly unchangeable and superior to established rules; and that at the same time it developed this model law in accordance with the ideas of atomistic liberalism, i.e. the ideas that the State is made up of the sum of the individual citizens, that formal liberties, like freedom of contract, of engag- ing in business or free trade, are simply "natural rights," and similar notions. To-day we have learned, in con- trast to the Law of Nature doctrine, that law is change- able by nature; that it is subject to development; that it is relative. In the civilized State of the present day, certain fundamental legal convictions are held abso- lutely, for instance, the inadmissibility of personal enslavement, freedom of religious and political con- victions, inadmissibility of exploitation by means of labor contracts (economic enslavement), and so forth. All these things are legal maxims which every Court puts at the basis of his decisions, without requiring a section of some code as authority. These legal maxims over- ride even the statutory law. These are legal principles 21 even though they have not existed from the beginning and may perhaps not continue permanently. But, accepting them merely as doctrines of our own stage of civilization, we are nevertheless here dealing with law, 21 To discover these principles is the task of the science of law, but in doing so the science of law is not a source of law as is erroneously stated by Gnaeus Flavius ("Der Kampf um die Rechtswissenschaft," Heidelberg 1906, p. 20). It merely utilizes the source of law in dis- covering and formulating such principles of law. Kiss, who believes that the court has authority merely to find new rules "praeter legem" for unprovided cases, holds the most urgent task of a future theory of the sources of law to be the expression of the judge- made law so arising, as a part of the system of law in force, and as a most important element in the law actually administered. ( Kiss, "Billigkeit und Recht, mit besonderer Beriicksichtigung der Freirechtsbewegung," in Archiv fur Rechts- und Wirtschaftsphilosophie, vol. 3, pp. 536- 550; Kiss, "Gesetzesauslegung und ungeschriebenes Recht," in Jher- ing's JahrbUchern, vol. 58, 1911, pp. 413-492, 473. 178 BEROLZHEIMER: EMOTIONALISM [Cn.V not with something outside of law. The vo/u-w BiKoiov is supplemented and corrected by the