The greatest question of legal theory nowadays in the arena of professional debate, both in Europe and America, is this: What is the inherent nature of the judicial and the legislative functions, and of the difference between them? What respective parts do judge and legislator perform in the declaring or formulating of law? And what are the materials or data which they respectively employ in this process of law-declaring? In short, is there any inherent necessity for two distinct functionaries? And if there is, what are the respective limitations and requirements in their methods of reasoning?
It might seem singular that such a fundamental debate should not have matured in professional thought, before the era of to-day. Can this tardiness be accounted for? Does political history account for it?
We must recall the fact that even as late as the rise of the Frankish State, the preponderance of influence in the development of economic life and in the administration and evolution of private law on the Continent lay with the mark assemblies and other local jurisdictions, and that there could be no question, under these simpler conditions of social grouping, of a method, either of, or in, the law.
We must remember, too, that under any of the regal systems obtaining in Europe before the French Revolution, the judges were invariably the king's appointees, and that the struggles to determine the location of legislative power were essentially, in their vital personal aspect, struggles between the parliamentary or popular personnel and the royal personnel. And we may well conclude that the latent judicial share in the law-declaring function would naturally not emerge as an issue; for the judiciary were subordinated to the king; and the notable exception, that of the French Parlement, is one that "proves the rule," for the struggle here between the King and Parlement was centered on the legislative power, and the judicial power of Parlement was only an appurtenant incident, not brought into contrast and conflict.
But when Montesquieu's famous triple separation of powers- legislative, judiciary, and executive - became practically accepted, why did not this separation of judicial and legislative functions lead to an issue, and to a general inquiry into its necessity? Because (we must infer) the spirit of the French Revolution had so emphatically settled the location of legislative power that the exclusive dominance of the parliamentary body as the declarer of law was placed beyond question, even for the judiciary, - and was bound to remain so for a long time to come. And the American Constitution enshrined this dominance.
But when the time should come that the personal aspect of the class-struggle had ceased even to be remembered, - when the judicial personnel had become practically democratized, by popular judicial elections or otherwise, the question of theory was ripe for fermentation. When any country to-day can look at its judicial body and at its legislative body, and see a hundred judges drawn from a professional legal class, and a hundred legislators drawn from the same professional legal class, distinguished from each other in no substantial respect of birth, education, class interest, or tradition, and employing more or less identical materials of thought in their technical labors,-when the judiciary committees of the so-called legislatures are found carefully collating the bearings of judicial decisions and the so-called judges are seen expounding considerations of public policy, the question is then bound to present itself, in any community, sooner or later, Why are these men occupying separate posts? Why are there separate posts? Why do legislators legislate and judges judge? What is the inherent distinction between their functions?
No doubt there is a distinction. But just what is it? And what is its relation to the nature of law? And what separate processes and materials of thought does it impose upon each functionary? For, until we have satisfied ourselves on these points, we cannot expect to proceed practically to remedy intelligently any observed defects of operation in either.
Here we come, of course, to fundamentals,-the nature and processes of law, justice, judgment, legislation. Such is the connection which arises between the problem of the day and the philosophy of law.
The problem of legal method has become a specific one in jurisprudence substantially within about the last twenty years. Certain special inquiries which logically belong in this field (like that concerning codification) are very much older, and it is interesting to note that it was principally the codification of German private law in 1896 which served to attract writers in all departments of legal science to the problems of legal method. The literature has grown already to large proportions. The reserves of mental force which (it may be assumed) are normally in existence in any given country or countries in constant, if not calculable quantities, and which find expression in literary and scientific products, have, within this period, been diverted away from the older conventional lines which brought to light intellectual outpourings on "Naturrecht," "Juristische Ency-klopadie," and "Allgemeine Rechtslehre," and towards the problems of legal method. It would seem at any rate, to speak of the last fifteen years especially, that there has been a very considerable falling-off in books of the first type, and a large production of books of the second.
The French Civil Code of 1804 did not stimulate a similar intellectual movement; nor did the Austrian Civil Code of 1811 have that result. The explanation, however, is simple enough. The economic milieu then was largely non-industrial, society internally was more stable, and although the same problems then existed in form, at least, they did not rise to the level of juristic consciousness because of a difference of content. Furthermore, the strain of economic readjustment was absorbed by the legal machine without great effort, and especially so far as concerns the part of the French Court of Cassation.
We have suggested that the problems themselves, in form, are not new. That is true. We have only to look back to the age of Labeo and Capito to find in principle the modern problems of legal method. The immediate genealogy of the present luxuriance of writing in this new department of legal science, however, may be traced to von Jhering's "Scherz und Ernst in der Jurisprudenz" (1885) followed a little later by Kohler, and then followed by Geny and Ehrlich (1899, 1903), with whom the movement takes on a definite form. And the present volume aims to present, in an order suited to develop the various stages of the discussion, the most useful recent utterances of eminent jurists on the principal aspects of the problem.
Dividing the general subject under two heads-the Judicial Function and the Legislative Function-the chapters under the first head must, nevertheless, inevitably concern themselves, at various points, with the relation of judicial decision to legislation. The chapters under the second head, assuming this dual aspect to have received clarification as to its theoretical foundation, proceed to deal solely with the problems peculiar to the legislative function.
The chapters of the first division-the Judicial Function-begin with the now celebrated utterances of Geny and Ehrlich on "freedom of judicial decision,"-the two whose expositions awakened the entire Continent to the profound possibilities of the subject. These are followed by chapters in which Gmelin, Kiss, Berolz-heimer, Kohler, Pound, Gerland, and Lambert have developed various principal aspects of the controversy, -notably the contrast between the English and the Continental judge, the subordination of the judge to legislative law, the scope of materials for judicial thought, the extent of judicial power of "interpretation," the doctrine of "gaps in the law," and the inherent logic governing judicial decision. The culmination is reached in Wurzel's chapter on "Methods of Juridical Thinking." He who has mastered this chapter has been born anew into a realm of clear thinking and perpetual disillusionment.
The chapters of the second division introduce us broadly but concisely to the fundamentals of the legislative problem. There is, however, as yet, little literature of a thorough-going critical character in this field. The future must see more, and America, not code-ridden as the Continent is, but fertile in a spawning mass of incoherent legislation, is the natural and needful place for its development.
Without attempting even to outline the many varied aspects of these chapters, we may in this preface notice some of the principal features that interest us in each of the divisions.