This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
An essential element of such a series as this, consisting of master-works on jurisprudence and the philosophy of law, is a consideration of Legal Method, the mode of treatment of the concrete legal problems which are presented in practice, the manner in which the abstract legal principles that lie at the foundation of all jurisprudence are applied to the task of reaching just and reasonable conclusions adequate for the decision of all disputed matters. The present book deals with this question of Legal Method, treating it mainly from the standpoint of Continental jurists, such as Professors Francois Geny, Eugen Ehrlich, Geza Kiss, Josef Kohler, Heinrich Gerland, of different European universities, Justice Gmelin of the Stuttgart Court of Appeals, and Fritz Berolzheimer, the president of the International Society of Legal and Economical Philosophy of Berlin. Another noteworthy chapter, on Courts and Legislation, by Professor Pound, the Dean of the Harvard Law School, will attract special attention from the general reader, and that attention will be well rewarded. It is a study of the nature of law and of its creation and development by judicial decision and by legislation, treated both in the light of the past and in its application to the needs of the future, - a development and application advantageously to be made, as Professor Pound concludes, by the empirical method of our Anglo-American law, assisted by proper legislation.
1 Former Justice of the Supreme Judicial Court of Massachusetts.
It was said by Lord Campbell, in his "Lives of the Lord Chancellors," that "English lawyers, though very acute practitioners, have been rather deficient in the enlarged knowledge of jurisprudence; and that has been true also of the members of the American bar." This doubtless was due in large measure to the somewhat haphazard method of legal instruction which had prevailed in both countries, by which the scientific element in the law was almost wholly overlooked. As has been pointed out by Professor Redlich of the University of Vienna, in his recent report to the Carnegie Foundation, one result of the systematic instruction now given in most of our law schools has been to bring about scientific treatment of the law, which may be expected to cause, among scholars at any rate, increased regard for the element of science in the law and a real study of comparative jurisprudence. It may be hoped that this tendency will be increased when to what is called the case system of instruction shall be added a general indoctrination of students into a view of the law as one whole body, which, though composed of several departments, has yet an organic unity of its own. Such a spirit among students will not be contented until it shall have utilized the researches of European scholars in the field of law regarded both as an art and as a science. One of the objects of the present series is to contribute to the attainment of that end; and this volume, necessarily somewhat disconnected from being made up of the works of different scholars, has an important place in the series.
Those who have studied exclusively the Common Law are accustomed to regard the cumulative effect of judicial decisions as being, with the additions and alterations made by statutes, the great guide to be followed in the practical administration of justice, as affording the best means of reaching proper conclusions in the concrete cases that have to be decided between party and party. The following of precedents in matters which have been decided, the correct deduction from those decisions of the underlying principles upon which they have been rested, and the application of those principles to new questions, so that old and new decisions may by a process of natural development grow into a continually extending body of law, sufficient for the guidance of all members of the community, have been regarded as the safe method of judicial decision. No case, it is considered, stands by itself; no case is to be decided merely by a determination of what in the peculiar circumstances presented may be required by abstract justice, as the conception of abstract justice presents itself to the unlimited discretion of the court. On the contrary, each new question is to be passed upon in the light of rules already laid down, and in its turn is to provide both new rules and new modes for the application of old rules to the settlement of new questions; and English and American lawyers have been wont to believe that Continental jurists on the other hand, so far as they are not aided and governed by the positive provisions of a code or other statute, are taught to disregard precedents, to recognize no binding force in earlier decisions, but to endeavor in each case to do justice between litigants by determining, justly and in accordance with what Professor Geny calls the "personal inspiration" of the judge, all the controverted questions that may come before him.
It is true that in the Common Law not only do statutes play an important part in altering or abrogating rules and doctrines established by decisions, but the development and increasing intelligence of the people, their changes of opinion on matters of political science or of public or private morals, and even considerations of expediency, do affect powerfully, though slowly, the views of the judges, and do materially alter and sometimes reverse the rules and doctrines affirmed by former decisions. So, too, upon the Continent of Europe, as is pointed out by Justice Gmelin and by other authors in the present book, it is the function of the judge, subject to the limitations both of statute and of custom, "to contribute," as Professor Geny says, "to the creation of law and to develop further such law as has already been formulated." It results, if these contentions are maintained, that fundamently there seems to be not so wide a difference either in the object aimed at or (outside of certain rules of evidence or procedure not in themselves very material) in the method adopted for reaching that object between our own courts and those of Continental Europe. Accordingly we should find in these pages much that will be of practical value to ourselves and our courts, as well as much that concerns chiefly the science of jurisprudence and the philosophy of law.
Our authors, recognizing that within the region left to the judge outside of the bounds of statute or of custom, he must exercise his personal activity to perform the function which has been stated, have much to say about "the nature of that activity as regards the subject-matter to which it extends, the precise manner in which it works, and the foundations upon which it is based." The distinction between the two systems of law is brought out in the first of these points. According to Professor Geny and those who agree with him, the judge, when the formal sources are insufficient to prescribe his decision, should act according to the dictates of real justice, on the rule which a legislator would prescribe for just the circumstances of that particular case, abstaining carefully from laying down any abstract rule, but passing simply upon the concrete problem presented. The common law judge, on the other hand, (and some of the Continental jurists agree with this) though equally careful to consider all the particular circumstances involved, seeks in the light of the principles which have been laid down in other cases to determine those which should govern the case before him. It is for this reason that under the latter system the decision has the force of a precedent which is denied to it under the former system, although as to that matter the discussion of Professor Ehrlich in the second chapter on "Lawyers' Law" and the "jus quod est" should not be overlooked. It is both interesting and instructive to follow the keen and logical discussion of the question in many of the chapters of this book.
Under both systems the object aimed at is to adapt the rules of law to the needs of social life. As was to be expected, the authors whose work is here presented do not exactly agree just how this is to be done. But their discussion goes deeper than many of us have been accustomed to look. They are not content with saying that judicial decisions ought to depend upon the application of correct principles of law to ascertained facts; their effort is to show how, in cases not governed by rules already established, the correct principles of law are to be determined and so applied as to produce a just result. The fact that we who follow and administer the Common Law resort in such cases to reasoning from principles that have been laid down in previous decisions ought not to prejudice us against the different method advocated in some parts of this book of aiming directly at the ideals of justice and of general utility. It is to be regretted that the omissions which necessarily have been made from some of the discussions have deprived us of a part of the context. What is presented, however, is ample to arouse interest, and it well may be hoped that many readers will be led to examine the subject further.
We need not here consider how far the actual results reached by these methods of ascertaining and applying principles of law to new cases not absolutely governed by those principles will finally differ from each other. The object of all law must be not only to secure real justice to the community, but no less to make it certain that each individual shall be able to know in advance of judicial decision what are his rights and his obligations, so that he may regulate his conduct aright. In the long run, that system or union of systems which best attains these results will be adopted. In the meantime we cannot overestimate the importance of studying carefully every system for which preeminence may be claimed. It is believed that this book will be of material assistance in such a study, and all the more so from the different contentions made by the different authors from whose works it has been derived.