By Edouard Lambert1

Sec. 1. theory that law is made stationary by codification: its effect. - Sec. 2. effect of the judicial decision the same in the anglo-american system. -Sec. 3. fallacy that customary law is without conscious policy. - Sec. 4. origin of the fallacy .- Sec. 5. customary law in the anglo-american system. -Sec. 6. custom and judicial decisions in anglo-american law. - Sec. 7. the true function of the judge. -Sec. 8. the english doctrine is a fiction. - Sec. 9. fallacy of the english doctrine. - Sec. 10. courts and legislature as organs of legal production. - Sec. 11. conCLUSION.

Sec. 1. Theory That Law Is Made Stationary By Codification: Its Effect

Reaction and revolt are manifest against the sterile and discouraging methods of the 1800s which have paralyzed juristic thought in France.

The development of these disastrous methods dates from the codification of 1804. It was, in a way, the price

1 [Professor of History of Law; in charge of the course of Comparative Civil Law at the University of Lyons. The present Chapter has been made up from excerpts chosen by the Editors from "La Fonction du droit civil compare" (Paris, 1903), vol. i, pp. 16-18, 61, 63, 74, 88, 93-95, 95-100, 110-112, 173-199, 795-796. 799-811, 821-823, 903. The translation is by LaytonB. Register, lecturer in the University of Pennsylvania Law School.] that had to be paid for the unquestionable benefits of codification. No sooner had the Civil Code been promulgated, than observation of the incessant action of juridical evolution was laid aside for the easier study of legislative texts. Scientific study gave way to mere commentary. Interpretation was deluded into the belief that the Civil Code and the few laws which have completed it and modified it, would serve indefinitely to answer all the juridical problems which the practice of affairs gives rise to each day. Expounders of the statutes believed that from their provisions, exclusively, by processes of analogy and by induction and deduction, they must control the development in detail, even of principles whose advent the legislator could not have foreseen. They were not concerned whether such control was equitable and adequate to the purposes of the principle, or such, indeed, as would assure its proper operation. Despite the clear and repeated lessons of history, they would not admit the inability of the legislator to render the law stationary; they denied that codification could at best modify the conditions of future juridical evolution, and that it cannot halt or suspend its course. They raised to the level of a dogma the concept of the rigidity and immobility of the law and of its capacity to anticipate and control everything. They considered all other sources of law as dead, and, in spite of the daily contradictions of experience, proclaimed that henceforward the adjustment of the existing system of law to the transformations in social and economic environment could be realized only when and as the legislator decreed. Powerless to prevent the inevitable, spontaneous and extra-legislative production of law, they yet bound themselves to ignore it. They adopted as the fundamental basis of their method a premise which is the very negation of one of the most universal laws of social evolution, the perpetual mobility of law.

We cannot wonder that, setting out from such a principle, the method introduced just after the Civil Code was adopted did not produce satisfactory results. Its principal effect has been to create a chasm, that widens each day, between the theory of text-writers and the rules created by judicial decisions. Theory was bound to feel the effect of its own policy of obstructing the natural path of the law, and of refusing to allow its principles and reasoning to be made elastic, or its classification of juridical elements to grow and multiply, as the increasing complexity of social and economic relationships required. By declaring the law to be stationary, theory condemned it to part company gradually with reality. Its place had to be taken little by little in practice by a new system of law formed slowly through the repetition of judicial precedent, and adjusted to the actual needs of society: the body of judicial decisions.

Meanwhile the gap between theory and practice is now rapidly widening. The law expounded in classroom and textbook differs more and more from that applied in the courts. If the method obtaining to-day continues to exercise its influence, we shall certainly witness in France a repetition of a most unfortunate phenomenon which similar causes have made observable in different countries and periods, especially at Rome and in England. The same obstinate disregard of the fundamental law of social evolution, the same belief in the absurd doctrine of the inflexibility of the law, which caused the Roman law to split up into civil and praetorian law, and English custom into common law and equity, must end, unless our Civil Code lawyers alter their ways in time, in a similar separation of the civil law into two systems, differing in origin and spirit, and providing opposing rules for most of our legal problems. On the one hand we shall have a body of "taught law" ("doctrine"), a system fallen into disuse, having a merely conventional and fictitious existence; and on the other hand the rules as applied in the courts, the system which is really in use. The principal consequence of the method which took root in France immediately after codification, has been to screen more and more from public observation the true operation of existing, living institutions, by concealing them behind the masks of dead institutions of the past. This method, too, forced French juristic writers to renounce for the time their traditional sociological functions.

The method which thus paralyzed legal speculation in France during the 1800s, or methods akin, developed spontaneously in other countries under the influence of the same causes. Writers on the Austrian Civil Code 2 allowed themselves to be drawn little by little, as happened in France, into exaggerating the effects of codification, attributing to it a capacity to render the law stationary, and laying aside the observation of the changes in the life of the law to interpret the Code of 1811.3

In Germany, the scientific study of civil law enjoyed far more liberty of movement before 1896 than thereafter. By reason of the absence of uniform legislation, it found a ground for development comparable to that offered by France between the time of the official compilation of the customs and the period of the drafting of the Civil Code, though perhaps a little less favorable. . . . The formation of a body of national law in Germany was due largely to the instrumentality of the doctrine of a "Deutsches Privatrecht," or German common law. This exercised a force tending to nationalize the law in Germany, similar to that exerted in France from the beginning of the 1500s by the theory of a common customary law, or, more especially, in the 1600s and 1700s by the numerous legal works which aimed to show the points of resemblance between the judge-made rules of the provinces of customary law and of written law, in order to distill out, wherever possible, elements of a law common to the whole of France. . . .

2 Obviously I include in this category only civil jurists of the provinces of the Austrian Empire governed by the "Allgemeines Burgerliches Gesetzbuch" of 1811.

3 Upon the evolution of the methods of study of civil law in Austria, during the first half of the 1800s, cf. the article by J. Unger, "Ueber den Entwickelungsgang der osterreichischen civiljurisprudenz seit der Einfiihrung des allgemeinen burgerlichen Gesetzbuches," republished in his "System des osterreichischen allgemeinen Privatrechts" (4th ed.), vol. i, pp. 635-638. For the contemporary movement, especially from the point of view of German law, cf. Julius Ofner, "Rechtstheoris-tische Bemerkungen," in Zeitschrift fur das privat- und offentliche Recht (1899), vol. xxvi, pp. 1-18.

The continuing influence of the doctrine of a "Deutsches Privatrecht," or German common law, prepared the way for, and made possible, the codification of 1896, which not only realized the uniformity of German civil legislation (though incompletely), but also marked a decisive stage in the movement towards the nationalization of her law. The German Civil Code did for the regions of the "gemeines Recht" what the local and autonomous codifications of the law of the constituent States had accomplished for the other parts of Germany; it destroyed the authority of the Roman law as a subsidiary law, that is, as a direct and formal source of law. In addition, the juridical system established by the new Code was purged of several maxims of Roman importation, met with in the majority of legal systems previously in force in Germany. . . . It is definitely accepted in Germany that the "Pandek-tenrecht," or modern adaptation of the law of the "Pandects," regarded either as a branch of legal literature or of teaching, has to-day reached the end of its career; codification numbered its days. The codification of 1896 will therefore have rendered the science of German civil law a double service: it will have hastened the elimination of those elements of a prior system which, being of foreign origin, had not been sufficiently assimilated; and it will within a short time have caused the disappearance of a method of legal education, really a Roman law education, which was developing to an exaggerated degree those natural defects of the juristic mind: I mean a love of logic and abstract conceptions, a scorn of the accidental realities of life, and an indifference to the needs of social and economic life.

But of these benefits the second can scarcely be felt until some day in the future, when German legal science will have escaped from the unfortunate course (though foreseen, to be sure),4 to which codification constrained it. Codification immediately stimulated in Germany the spread of that narrow and sterile method which during the 1800s had paralyzed the work of our own "school of expounders of the Civil Code." The already abundant literature upon the German Civil Code5 presents a striking similarity to those first products inspired by the French Civil Code. There is the same marked tendency to remain within the letter of the legal text, to isolate the present juridical system from its historical antecedents, to cut the roots which attach it to the social environment in which it was formed. It is already very evident that German writers, as they warm to their new task of interpreting and applying the Code (too often theoretic and obscure), will abandon for the time the creative labor of improving the law, and will pass through a phase of sterility similar to that which affected French doctrine under the leadership of the "school of expounders of the Civil Code."

4 Zilelmann, "Die Gefahren des BGB fur die Rechtswissenschaft" (Bonn, 1896), and the critical analyses in Meyer, "Ueber Codification, Rechtswissenschaft und Rechtsstudium der Zukunft," in Zeitschrift fur verg. Rw., vol. vii, pp. 81-101.

5 Cf. the enumeration of the authors inspired by the new Code and those prior to 1898, in Maas, "Bibliographic des burgerlichen Rechts" (Berlin, 1899), and supplement of 1900, containing mention of works published in 1899. Also Muhlbrecht, "Bibliographic des BGB" (Berlin, part i, 1898; part ii, 1900).