By Fritz Berolzheimer1
Sec. 1. "freedom of judicial decision" in substance not a new idea. - Sec. 2. "justice based on the adjustment of interests" an untenable standard. -Sec. 3. "free application of law" equivalent to decision against the established rule. - Sec. 4. "freedom of judicial decision" to be applied only in accordance with legal principles. - Sec. 5. the principles of "freedom of judicial decision" grow out of historical and economic conditions. - Sec. 6. the basis of "freedom of decision" is the idea of liberty, i.e., the elimination from the law of all oppressive action.
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.]
2 Geny, "Methode d'interpretation et des sources en droit prive positif," Paris, 1899 ("libre recherche scientifique"), pp. 457 seq., 580 seq. Further, Ehrlich, "Lucken im Recht," In Burian's Juristische Blatter, vol. 17, pp. 417 seq.; Ehrlich, "Freie Rechtsfindung und freie Rechtsvvissenschaft," Leipzig 1903; Wurzel, "Das juristische Denken," opinion to this extent, that the great majority of lawyers 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 decision," 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 according 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 worshipers of the letter,-barring certain periods of imperfectly developed judicial activity. The degree of freedom 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 Draconian 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 judiciary; 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.
Vienna 1904; Cruet, "La Vie du droit et l'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 (Grunhut'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").
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."
3[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 interpretation 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 V.]
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 vociferously 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.