By Heinrich B. Gerland1
Sec. 1. RECENT PROPOSALS OF LAW REFORM. - Sec. 2. FREE LEGAL DECISION. - Sec. 3. ENGLISH COURTS AND LEGAL DEVELOPMENT - Sec. 4. POWER OF ADOPTING RULES OF PROCEDURE. - Sec. 5. THE SYSTEM OF FOLLOWING PRECEDENT. - Sec. 6. PRACTICAL EFFECT OF THE SYSTEM: ADVANTAGES. - Sec. 7. PRACTICAL EFFECTS: DRAWBACKS.-Sec. 8. PRACTICAL EFFECTS: FURTHER DRAWBACKS . Sec. 9. UNMANAGEABLE STATE OF ENGLISH LAW . -Sec. 10. PROPOSED CODIFICATION . -Sec. 11. FREE LEGAL DECISION NOT PRACTISED.
An attempt to consider the various modern movements for legal reform historically, that is, not so much by analyzing their ends and aims as the causes which have brought them about, would seem to be decidedly interesting from several points of view. Such an inquiry even may have more permanent value than a consideration of such movements with a view to the expediency of their aims and purposes. For one thing, we should arrive at a less
1 [Professor in the University of Jena. This chapter is a translation of an address delivered (in substance) before the Society of Juristic Medicine at Erlangen, and published in "Zivilprozessrechtliche For-schungen" edited by Dr. Richard Schmidt, Heft 6, Rothschild, Berlin, 1910. The translator is Ernest Bruncken.] biased conclusion, we should learn to comprehend and appreciate the historical justification of each movement for reform. Moreover, we should become acquainted with objective facts, while even the cleverest reasoning always retains a more or less pronounced subjective character. Finally, we should learn to know the connections between the changing life of the law and the great movements in the civilization of each period. It is such connections that will often be the first means of explaining the ultimate significance of a legal movement, as well as its ultimate purpose. Nor need I emphasize the further truth that a comprehensive study of this kind will be the only method by which the reforming tendency itself and its substantial contents may be estimated at their true value, or at least appreciated as something of importance.
We may safely assert that among the most interesting movements towards law reform in our own time are those which are directed not against provisions found in particular enactments, such as the Penal Code or the Code of Civil Procedure, but rather those that are the outgrowth of a vague and generalizing discontent with legal conditions and the instruments of administration of the law, the courts. We cannot help taking into account the existence of this movement, which is important also from a political point of view, whatever may be our opinion regarding its justification.
This movement criticizes the functioning of our courts. "Strangers to actual life" is one of the most polite expressions used by these reformers regarding our judges. Attacks are directed, not so much against the contents of our legal system, as against the manner in which justice is administered. It is easy to recognize in this movement two subordinate tendencies. One set of critics starts from the organization of our courts and represents it as defective. The large number of judges employed, it is said, makes it impossible to have the law administered exclusively by eminent men of real capacity. Disregarding details, we may say that their battle-cry is: Give us men! Give us judges of genius, such as we need! They demand a change in organization to the extent only to which a realization of their real desire requires it. The important thing, to which attention is called again and again, is this: that on account of the manner in which our tribunals are organized a majority of our judges are unfit really to perform the functions which their office and the age demand of them.
Quite different from this tendency (which is represented most strenuously by Adickes2) is another current of thought. Those who give it expression also lay stress on the defects in the legal administration of to-day, but believe that the fault lies altogether in the attitude which the judges have assumed toward enacted law. They find the cause of the trouble, not in the manner in which the courts are organized, but in the lack of freedom of the judge in his treatment of legal rules and especially statutes. The judge, they say, is a slave of the statute, an unprogressive idolater of code sections, instead of the shaper of independent legal development. Accordingly, the adherents of this party do not propose to change the principles of the existing organization of the courts. They do, however, propose a new method of interpretation. Ultimately, they are in favor of what has been called "free legal decision," according to which the law as it stands hereafter is to be merely a general guide for the instruction of the judge. His real duty is to find the law which, as has been said, dwells in each particular state of facts. He is to fill the general forms of the statute with the sociological considerations growing out of each separate, concrete case.3
2 Adickes, however, has attempted to defend himself against the charge of demanding merely a reform in the constitution of the courts, instead of insisting rather on an amendment of the law of procedure. Comp. "Aschaffenburg's Monatsschrift," vol. iv, p. 13.