It would seem as if nobody could seriously deny that the conditions here described in outline must have considerable and unfavorable effects upon the administration and development of the law. In addition, the omnipotence of the courts cannot but lead to subjectively arbitrary judgments. In the last analysis, it is the Court which decides whether a decision is a precedent or not, and whenever he comes to render a new decision, his individual discretion creates a new objective rule. As a matter of fact the condition of the case-law is like an incubus on the people. On the one hand there is a sort of ossification of the actual rules of the law, which the courts all too frequently try to counteract by artificial interpretation of the facts. On the other hand, it is difficult to get a clear idea of what the law really is, and where there is a lack of precedents there is the greatest uncertainty. Commercial causes suffer most from these conditions. The increasing tendency of business men to stay out of the courts and resort to arbitration is caused to no small extent, it seems to me, by the system of following precedents. Business requires clearness of legal rules. The movement in favor of codification which lately has become more and more urgent in England, comes very largely from commercial circles. Whether anything will come of this within measurable time seems to me more than doubtful. For the unsystematic training of English lawyers renders codification on a really large and systematic scale exceedingly difficult if not impossible. How can mere case lawyers create an abstract code? And even if a legislator of great genius should arise and accomplish so enormous a task by consolidating the common law and the myriads of decisions, is it likely that the case lawyers would know how to make use of the code? The ultimate reason for the opposition to codification, which is so commonly found among English lawyers, has its principal roots, as it seems to me, in the last-named circumstance.20 Nor should one overlook this consideration: as long as the system of precedents remains in force, even the best codification would be useless. For around the code would grow a new tangle of precedents and cover it like the wild roses that covered the castle of the sleeping
19 To be sure, there exists among us to-day a tendency, and unfortunately it amounts almost to a fashion, that is pleased to depreciate the work produced in our legal literature, of which we Germans might rightfully be proud, and to stigmatize it as wholly unimportant. Writers who are given altogether too much honor by calling them prophetic and excusing their extravagances, dare to decry works like Windscheid's "Pandekten" or Sohm's "Institutionen" as being compositions without value. These writers rave about English judges who, according to them, are trained for practical life by studying the cases and therefore qualified to develop the law further by their own fertile powers of mind. I wish that these enthusiasts had to study German law from the chaos of cases swept together in what, among Englishmen, passes for systematic works. Precisely this is the extraordinary advantage we owe to our systematic jurisprudence: the general propositions hidden behind the occurrences of practical life have been reduced to the abstractions of the law, so that we are relieved from the necessity of abstracting them from the thousandfold shapes and relations of social life.
20 The connection of these two circumstances has been clearly recognized in England likewise. Thus, in "Journal of the Society of Comparative Legislation," n. s., vol. iii, p. 142, the lack of a comprehensive codification is ascribed "to the defective and haphazard system of English legal education, under which the student is usually left to pick up odd fragments of knowledge in court or in barrister's chambers, and is rarely encouraged to take any general or scientific view of the principles which he has to apply." beauty in the fairy tale. Behind that almost impenetrable hedge the spirit of the law would slumber as in a magic sleep, and it would be doubtful whether any liberator would ever bring it to life again.