A modern judge who assumes it to be his duty always to base his decisions on an express statute naturally will ask what is to serve as foundation for the administration of justice if that of a statute is to be withdrawn.
One might be tempted to reply simply that in every period of time there has existed a justice not hedged about by code sections. Such justice, however, is by no means arbitrary. As already emphasized at the opening of this essay, it grows out of the principles of juridical tradition. Every kind of freedom of decision starts with juridical tradition and tends toward what Stammler has called "correct law" ("Richtiges Recht"). The very peculiarity of the judicial office is the assumption that the judge's utterance represents, not his personal opinion, but the law. And this law is found primarily in the legal records of the past, in statutes, in decisions of courts, in legal literature. No Roman jurist ever deviated farther from the traditional rules than he was compelled to do by necessity. Blackstone, in a famous passage of his Commentaries, speaking of the English common law, represents the English judge as only declaring, not as making, the rules of law.10 Free decision is conservative, as every kind of freedom is; for freedom means responsibility, while restraint shifts responsibility upon other shoulders.