We have now observed the place of the courts in the development of English law. We have described and criticized especially the manner in which, by rendering their decisions, they at the same time create new law. Leaving on one side their cooperation in regulating procedure, which, as mentioned above, is well worthy of attention in itself, but of slight interest for a comprehension of the struggles, problems, and development of our time, we have shown, as it seems to me, in contemplating case-law, two important points. First, we are now able to determine whether an English judge occupies a place analogous to that of a Roman praetor, or whether Bryce is not right when he calls attention to the profound difference between the functions of the two officers.21 Furthermore, the ideal of the school of free legal decision, the independent position of the judge in relation to the statute, is by no means realized in England any more than elsewhere. In England likewise, the court is bound by existing rules; such rules have not simply relative, but absolute force. Still, the courts do exercise restricted lawmaking functions; but these functions are accompanied by so many dubious and not at all dubious circumstances that it seems to me impossible to argue that this system should be desired for our own country, let alone to demand the absolute independence of the courts from the fetters of legal rules, which would in practice be nothing better than absolute judicial arbitrariness.22
21 "Journal of Society of Comparative Legislation," n. s. vol. iii, p. 468.
22 Adherents of the free decision doctrine might object that they do not ask that decisions should become binding rules. However, we are a thing looks to a single court. We find new horizons with new means of knowledge through the free play of many minds all of which we utilize, and through the struggle of opinions which eliminates the factor of subjective error. Thus they have always contributed their share, the great judges which this country also has produced, and of whom we have every reason to be proud. The development of our law is, in part, their work, although it is only their deeds that survive in their decisions, instead of their names also, as in England.23 Thus I would wish that the body of our judicial decisions may continue to develop and flourish in scientific freedom, subject to naught but the law. Then our judges will ever fulfill the highest desire of all lawyers: they will be men who carry on the legal (which is the social) development of our nation, men who are creators and not mere teachers or slavish repeaters of what they have been taught, pioneers of the future notwithstanding their systematic comprehension of the past.
Our judiciary will have to rest content. We shall not endow it with the "imperium" of the English courts, apparently splendid as it is, though that splendor may often be external only. Do we thereby deprive our judiciary of all opportunity to contribute its share to the development of our law? Hardly! On the contrary, we thereby create for it an opportunity for intrinsic and not merely nominal cooperation. For legal development proceeds not by the conclusive formulation of a rule but by the working out of principles which underlie the rule. The fundamental weakness of the English system is found precisely in this, that every legal proposition, once authoritatively enunciated, becomes a legal rule. Consequently it is no longer capable of further transformation, of further elaboration. Whenever, with us, a new proposition is announced in some decision, it is possible to work over it theoretically and practically, by criticism and by systematic thought, so as to develop it further and elaborate it more fully. Nothing is concluded, there are unlimited possibilities of further action. By setting the courts free from the fetters of precedent, we furnish them the opportunity of taking part at all times in the scientific work of development. We are not satisfied with the way not interested just now in dealing with the ideas of the school of free legal decision, but simply in understanding the conditions prevailing in England with a view to discovering whether we can find in them an idea that can be made fruitful for ourselves. And such does not seem to me to be the case. If the German judges are slaves of code sections, the English courts are slaves of precedents. If we are to find vital ideas in foreign countries, it seems to me that we should and could make use first of all of the Swiss Civil Code. For in its section 2 we may discover a road towards new goals without risk of falling into a quagmire. However, we had better bear in mind, also, what Radbruch says on page 69 of his "Einfuhrung in die Rechtswissenschaft": "With us also, the recognition of judicial lawmaking would of necessity lead to recognizing as legitimate that idolatry of precedent which is just as widely indulged in as it is universally condemned." In other words, Radbruch correctly, as it seems to me, calls the system of precedents a necessary consequence of every form of free decision, and by no means an accidental feature peculiar to English law.
23 In England, the name of the judge is frequently cited, rather than the decision, because his name lends authority to the views expressed in his opinion.