This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The foregoing considerations are the justification for that progressive development and elaboration of the legal system which is the necessary result of the binding operation of judicial precedents. English law and every other system which has its historical origin in English law grows not merely externally by way of legislative imposition, but also internally by the secretion of new rules which are the product of the judicial interpretation of the law. However skillfully drawn, a statue when first enacted is but an imperfect piece of work. It contains ambiguities, omissions, and real or apparent inconsistencies. But in the process of time it is supplemented by a body, often considerable in extent, of authoritative rules of case-law by which these defects are remedied. In the beginning a statute means what the courts in the exercise of their unrestrained judicial powers decide that it means. In the beginning the meaning of a statute is a question of fact just as is the meaning of any other written document. But in process of time its meaning becomes more and more taken out of the region of fact and becomes more and more determined by authoritative rules of interpretation created by the judicial precedents which arise in the course of its administration.
It is true that this development of case-law has its evil aspects. It is true that the growing burden of it is such as to give some weight to the suggestion that the law should be that which is established by the legislature only, and that in the administration and interpretation of that law the courts should be free to act as they think fit, without subjection to a vast body of subsidiary law created by the decisions of their predecessors. Nevertheless the system of authoritative judicial precedents is based on sound considerations of public policy.
In the first place it secures the proper administration of justice by imposing upon the courts that restraint which is due to the knowledge that their determination of the individual case is at the same time the establishment of a fixed rule for all other cases of the same kind. The additional sense of responsibility so given to the judicature by the knowledge that they are making law for the future, as well as deciding an individual case, has the same effect in eliminating the influence of illegitimate considerations applicable to the particular instance as is exercised by the existence of a system of preestablished law.
In the second place the system of precedents prevents the same question from remaining indefinitely open as the subject of repeated litigation and judicial determination. As early as possible it brings every unsettled question within the scope of a fixed legal principle and takes it out of the sphere of free judicial determination. A judge is bound by the decisions of his predecessors, not because they were necessarily or even presumably wiser than he is-not because their decisions are necessarily or presumably more correct than those at which he would himself arrive-but because it is in the public interest that questions once decided should remain decided. Therefore it is, that the law grows steadily in bulk and elaboration by a process of internal secretion, whereby the sphere of the "arbitrium judicis" grows less and less and the sphere of authoritative legal principle grows greater.
The evils of this system of legal development are doubtless great, but they can be largely avoided by the recognition of two practical principles. The first of these is that no decision is worthy of recognition as a precedent unless it contains within itself some general principle of law as opposed to a mere determination of the individual instance. The second is that, in order to render the system of case-law tolerable, the law so developed should from time to time be formulated as statute law so that its principles may receive authoritative expression "in abstracto" freed from the complexities of the individual decisions from which they proceed. No better system of law can be devised than a system of statute law progressively supplemented by the case-law which arises from its interpretation, and superseded from time to time by a fresh formulation of statute law which incorporates within itself the case-law theretofore developed.
Closely connected with the foregoing question of free judicial decision is the problem of the sound judicial interpretation of the written law-a problem to which a considerable part of the present volume is devoted, and which by reason both of its practical importance and of its scientific interest deserves more consideration than it has received in English legal literature.
The true doctrine of judicial interpretation is a reasonable compromise between two unreasonable extremes, each of which is rendered possible by the inherent imperfections of human speech and the laxity of legislative construction and expression. The one extreme is that of the strictest literal interpretation-the unqualified and rigid acceptance of the maxim, "Ita scriptum est." No language is so perfect, and no legislation so skillful, that this mode of interpretation will not constantly lead to absurdities and defeat the true purpose of the legislature. The opposite extreme is the license of disregarding the letter of the law in order to seek elsewhere a rule that is deemed more consonant with justice or the legislature's intention. The ambiguities and other defects of language, even when used with the careful precision of statute law, are such that no legislation will bind a court which claims and exercises this license in its methods of interpretation. If the words of the law can be given an unnatural meaning, if words can be read into a statute which are not expressed therein, or disregarded as inoperative although they appear therein, if the courts are at liberty to adopt as law that which the legislature is presumed to have meant rather than that which it has actually said, there are few statutes which would be proof against the dissolving influences of this form of interpretation; and the courts instead of being bound by fixed rules of law made for them would in effect be at liberty to legislate for themselves and to substitute under the guise of interpretation the "arbitrium judicis" for the "lexscripta" Judicial and forensic astuteness could on this system untie all legal bonds imposed by the legislature, and substitute for the administration of justice according to law its administration according to the good pleasure of the courts.
The true and authentic system of interpretation is a compromise between these two extremes. The fundamental maxim of sound interpretation is "ita scriptum est," and it is not the business of the courts to be wiser than the laws and to mold them into conformity with judicial views of what is just or unjust. The letter of the law is the law itself. Nevertheless there are cases in which the "litera legis" is logically defective and cannot be so received as the authoritative and conclusive expression of the will of the legislature. It may be ambiguous, expressing more than one alternative meaning. It may be inconsistent, expressing two concurrent and conflicting meanings. It may be incomplete, providing for part only of a complex subject-matter and leaving the residue unprovided for. In these cases and in these only is there any lawful scope for judicial interpretation which departs from the letter of the law. In these cases, as the authoritative formulation of the law has failed to express a single harmonious and complete idea, it may be lawfully supplemented by considerations drawn from the real or presumed purpose of the legislature and from the requirements of natural justice. In all other cases the public interest is best served in the long run by the loyal recognition on the part of the courts of the fact that their business is not to make the law or to reform it, but to obey and administer it as it stands, leaving with the legislature the responsibility for its imperfections.
ABR, Archiv fur Biirgerliches Recht. ARWP, Archiv fur Rechts- und Wirtschaftsphilosophie. AZP, Archiv fur Zivilistische Praxis. BGB, Biirgerliches Gesetzbuch (German Civil Code). DJZ, Deutsche Juristenzeitung. DRZ, Deutsche Richterzeitung. GU, Gerichtsurteil (Court Decision, in Austria). HGB, Handelsgesetzbuch (Commercial Code). JW, Juristisches Wochenblatt.
OBGB, Oesterreichisches Allgemeines Biirgerliches Gesetzbuch (Austrian Civil Code).
OSG, Oesterreichisches Strafgesetzbuch (Austrian Penal Code).
RG, Reichsgericht (Imperial Supreme Court, Germany).
RGStr., Entscheidungen des Reichsgerichts in Strafsachen.
RGZ, Entscheidungen des Reichsgerichts in Zivilsachen (Decisions of the Imperial Court in Civil Cases).
VGH, Verwaltungs-Gerichtshof (Administrative Court).
ZSRG, Zeitschrift der Savignystiftung fur Rechtsgeschichte.
ZRW, Zentralblatt fur Rechtswissenschaft.
ZVR, Zeitschrift fur Vergleichende Rechtswissenschaft.
SCIENCE OF LEGAL METHOD
PART I -THE PROBLEM OF THE JUDGE