And yet it is no compelling rule of law that has degraded the modern judge to his present position. It is true that the technical method of legal science dominates the application of the law; but like every other scientific doctrine it is bound to give way at any time before a better understanding of the truth. There was indeed a vigorous countercurrent noticeable in the scientific treatment of the law as early as the 17th century. The doctrine of the Law of Nature, which ruled the minds of lawyers throughout the 18th century, and has really never disappeared altogether, can, in part, be explained in no way but as a reaction against the technical method. In England, the classical country of free judicial decision, it has always been hard to understand what all this "Law of Nature" meant.7
6 It should be remembered that the office which in Rome is analogous to the English judge, is that of the consulting jurist delivering "responsa." It is true, however, that in England also the system of appeals and of judicial benches has taken root, although partly in a different fashion.
The teachers of the Law of Nature raised the question, quite seriously, which law was entitled to precedence where the law enacted by the State and the Law of Nature were in conflict. There were few who would have doubted that the judge was bound to decide according to the Law of Nature wherever the written law failed him. The doctrine of the Law of Nature, as such, has lost its power over the minds of lawyers, yet its seed has borne fruit, and German legal science, in many respects, is still unconsciously imbued with its spirit. This is true, in particular, with reference to the doctrine of the non-compulsory effect of statutes. The rule that the written law cannot determine questions peculiarly within the province of scientific expert knowledge has beyond a doubt won back for the cause of free decision a good part of the lawyers' law. Among such non-compulsory parts of statutes are classed especially (in the opinion of many) provisions regarding the theory of the sources of law, and the method of applying the law. Both these subjects must therefore be left to free scientific discussion. Similarly, according to the
7 Bergbohm, "Jurisprudenz und Rechtsphilosophie," p. 331; Bryce, "Studies in History and Jurisprudence," vol. 2, p. 177. Holland, "Elements of Jurisprudence," 8th ed., p. viii, calls the German Law of Nature "jurisprudence in the air." accepted view, definitions in a statute are in no way binding upon legal science, at least as regards private law.8
Let us here quote the following from the official notes to article 1 of the preliminary draft of the new Swiss Civil Code.9 "... During a period not altogether passed away, people were influenced by the illusion that the court would always and in all cases apply the formulated law, if not according to the letter, according to its meaning and spirit. Yet this assumption is, in many cases, not verified. The proposal to recognize the real condition of things, as made in this draft, is likely to meet with the objection that the judge would thereby become too independent. He will, indeed, be more independent than he is now in those places where he is expected to derive absolutely everything from the statute, even if by the most questionable tricks of interpretation. But it shows a higher conception of his office not to expect of him such performances. He should have the right to recognize that there are in the statute 'lacunae' which cannot be filled by construction. After he has determined that fact he will render his decision, not on the assumption that the statute covers everything, but that the whole body of the law is sufficient for all cases, and will presume the existence of such rule as he would consider
8 [A number of paragraphs here omitted deal with special provisions in the Codes of France, Germany, and Switzerland. - Transl.]
9 [The text of this article is as follows:
"The Civil Code applies to all cases for which it contains provisions, either according to its letter or its spirit.
"If the Code contains no provision applicable to the question at issue, the judge shall decide according to customary law, and where that is also absent, according to recognized legal doctrine and science.
"In the absence of all these sources, he shall render judgment in accordance with such rules as he would enact if he were the legislator." -Transl.] proper in reference to the whole body of the law if he were legislator."