4 Brown v. Leyds, 14 Cape Law Journal, 94; "The Courts and the Legislature," 14 Cape Law Journal, 109; "The Judicial Crisis in the Transvaal," 14 Law Quarterly Rev. 343. Cf. a similar case in Roumania, 6 Am. Pol. Sci. Rev. 456.
5 Deakin v. Webb, 1 Com. L. R. 619; Baxter v. Com'rs, 4 Com. L. R. 41, 63, 81; Cooper v. Com'r, 4 Com. L. R. 1304; Federated Ass'n v. New S. W. Ass'n, 4 Com. L. R. 488; Rex v. Barger, 6 Com. L. R. 41, 63, 81. See Webb v. Outrim,  A. C. 81; Moore, "The Commonwealth of Australia" (2 ed.), chap. 4. Cf. In re Award, 26 New Zealand S. C. 394.
6 "Jurisprudence" (4 ed.), 655.
7 "Institutionen des deutschen Privatrechts," Sec. 1.
8 Kantorowicz, "Rechtswissenschaft und Soziologie," 5.
Judicial decision of a controversy, the facts being ascertained, has been said to involve three steps:(1) finding the rule to be applied, (2) interpreting the rule, (3) applying the rule to the cause. The first process may consist merely in laying hold of a prescribed text of code or statute, in which case it remains only to determine the meaning of the rule and to apply it. More commonly the first process involves choice among competing texts or choice from among competing analogies, so that the several rules must be interpreted in order that intelligent selection may be made. Often such interpretation, using the term to mean a genuine interpretation, shows that no existing rule is adequate to a just decision and it becomes necessary to provide one for the time being. The rule so provided may or may not become a precedent for like cases in the future. In any event, this process has gone on and still goes on in all systems of law, no matter what their form and no matter how completely in their juristic theory they limit the function of adjudication to the purely mechanical.
9 Zitelmann, "Die Gefahren des burgerlichen Gesetzbuches fur die Rechtswissenschaft," 19.
Perhaps the classical instance of the process referred to is to be found in article 5 of the French Civil Code. That article reads as follows: "Judges are forbidden, when giving judgment in the cases which are brought before them, to lay down general rules of conduct or decide a case by holding it was governed by a previous decision." Its purpose was, as we are told by an authoritative commentator, to prevent the judges from forming a body of case-law which should govern the courts and to prevent them from "correcting by judicial interpretations the mistakes made in the [enacted] law."10 After a century of experience in the endeavor to carry out this purpose, French jurists are now agreed that the article in question has failed of effect. To-day the elementary books from which law is taught to the French students, in the face of the code and of the Roman tradition, do not hesitate to say that the course of judicial decision is a form of law.11
All of the three steps above described are commonly confused under the name of interpretation, because, in primitive times, when the law is taken to be God-given and unchangeable, the most that may be permitted to human magistrates is to interpret the sacred text. The analytical jurists first pointed out that finding a new rule and interpreting an existing rule were distinct processes, and Austin distinguished them as spurious interpretation and genuine interpretation respectively, since his belief in the possibility of a complete body of enacted rules, sufficient for every cause, led him to regard the former
10Laurent, "Droit civil Francais," i, Sec. Sec. 250-262.
11 Baudry-Lacantinerie, "Precis de droit civil" (8 ed.), preface; Capitanl, "Introduction a l'etude du droit civil" (3 ed.), 30ff. See also Demogue, "Notions fondamentales du droit prive," 216 ff.; Estnein, "La jurisprudence et la doctrine," Revue trimestrielle de droit civil, i, 1; Saleilles, "Le code civil et la methode historique," "Livre du centennaire du code civil," i, 97; G'eny, "Methode d'interpretation," Sec. Sec. 39-59. [See also ch. i supra.] as out of place in modern law.12 Indeed he was quite right in insisting that spurious interpretation as a fiction was wholly out of place in legal systems of to-day. But experience has shown, what reason ought to tell us, that this fiction was invented to cover a real need in the judicial administration of justice and that the providing of a rule by which to decide the cause is a necessary element in the determination of all but the simplest controversies. More recently the discussions over the juridical handling of the materials afforded by the modern codes has led Continental jurists to distinguish application of rules to particular causes from the more general problem of interpretation. Indeed, under the influence of the social-philosophical and sociological jurists, who have insisted that the essential thing in administration of justice according to law is a reasonable and just solution of the individual controversy, application of law has become the central problem in present-day legal science.
Given the three steps in the decision of causes, as courts now proceed, namely, finding of rules, interpretation of rules, and application to particular controversies of the rules when found and interpreted, let us consider the relation of the courts to legislation with reference to each.
It has been a favorite notion of legislators that the finding of law could be reduced to a simple matter of genuine interpretation; that a body of enacted rules could be made so complete and so perfect that the judge would have only to select the one made in advance for the case in hand, interpret it and apply it.13 As has been
12 "Jurisprudence" (4 ed.), 1020-1036. See my paper, "Spurious Interpretation," 7 Columbia Law Rev. 379.
13 "These decisions leave the legitimate business of the country in a condition of uncertainty. . . . This condition I have met by a bill which I have introduced in the Senate. It enumerates in plain said, this was the eighteenth century idea. Thus in the code of Frederick the Great the "intention was that all contingencies should be provided for with such careful minuteness that no possible doubt could arise at any future time. The judges were not to have any discretion as regards interpretation, but were to consult a royal commission as to any doubtful points, and to be absolutely bound by their answer. This stereotyping of the law was in accordance with the doctrines of the law of nature, according to which a perfect system might be imagined, for which no changes would ever become necessary, and which could, therefore, be laid down once for all, so as to be available for any possible combination of circumstances."14 Bentham and Austin, who saw clearly enough that the doctrine of natural law of the eighteenth century was untenable, none the less had the same idea of the possibility of a perfect code, stating the existing law in complete detail. Accordingly Austin named as a defect of the French Civil Code what has proved to be the chief source of its success, namely, that it was not intended to be complete but was intended to be supplemented and explained by various subsidia.15