By Geza Kiss1
Sec. 1. the function of the courts and the growth of law . -Sec. 2. history of legal hermeneutics: roman law. - Sec. 3. "aequitas" and "logical exposition." - Sec. 4. history continued: later roman law. - Sec. 5. the modern problem. - Sec. 6. the problem of unprovided cases. - Sec. 7. free legal decision. -Sec. 8. the true method. - Sec. 9. the reasons for gaps in the statutes.
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
1 [Professor of Law at the Law School of Nagyvarad (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.]
2 For literature on the movement for free legal decision, see especially the data by Hedemann, "Zivilistische Rundschau," in Archiv fur Burg. R. 31, pp. 115 seq. and 296 seq.; cf. also: Oerimann, "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," 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 administered 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 interpretation,3 and of reducing this to a single and fundamental 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 expect5 "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 l'impuissance des Iois" (Bibliotheque de philosophic scientifique) 1910.
3 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: Hinneberg's "Kultur der Gegenwart," ii, 8, p. 42 seq.). 2. Hegel's and Kohler's "standard of progressive culture," as formulated by Bruit ("Die Kunst der Rechtsanwendung," 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 Interpretation juridique," Paris and Brussels, 1907, pp. 133 seq.
4 Comp. especially Rumpf, "Gesetz und Richter," Berlin, 1906.
5 Thus, Brutt, "Die Kunst der Rechtsanwendung," p. 124.
6 First shown especially by Kohler, "Die schopferische Kraft der Jurisprudent," in Jhering's Jahrbucher, 25, pp. 262 seq. Sternberg's
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 conception 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; probably 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.
7 Regelsberger, "Pandekten," 1, Sec. Sec. 36, 145; also: "Streifzuge im Gebiet des Zivilrechts" (sep. repr. from "Festgabe der Gottinger Juris-tenfakultat fur 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.
3 The importance of a history of traditional hermeneutics, "of which we are in great need in these days of discussions about juridical method,"