These admirable words describe exhaustively the task devolving upon the judge under the principle of freedom of decision. Notice the further statement that "Such is in reality the practice even now." This refers, to be sure, to the special character of the administration of law in Switzerland, where the adoption of the Roman law and the bureaucratization of the bench was never carried out completely. But the practice elsewhere is not different. It is significant, however, that judicial decisions are rarely based upon analogy or on the spirit of the statute. These are regarded as being so indefinite that thereby the door would be opened wide to freedom of decision. It seems as if the courts were actually afraid of their unaccustomed freedom. Far more frequently the decisions employ certain undefined and undefinable conceptions which have been adopted by legal writers and lawmakers, sometimes avowedly and more often unconsciously, for the purpose of affording an opportunity for freedom of decision, for example, such terms as "the nature of the subject-matter," "implied intent," "good faith," or the "custom of the trade."
No other court, sitting in a jurisdiction where the technical method prevails, has succeeded in acquiring so much freedom as the Court of Cassation at Paris. To this circumstance we owe some of the most fruitful juridical ideas of the age. Among these must be counted liability for accident and the negligence of a stranger, the rules against unfair competition, the development of copyright, and the law of insurance. By the decisions of the Paris Court of Cassation so many new ideas have been infused into French civil law, statutes have been interpreted so frequently in a manner deviating widely from the intention of the legislator, that one may properly say: Whoever knows merely the statutory law of France has no conception of the law as it actually there exists. In Germany the former Hanseatic Supreme Court of Appeals at Lubeck, the Appellate Court of Commerce at Nuremberg, and subsequently the Imperial Supreme Court of Commerce (and the Imperial Court itself, at least in commercial cases, in which the courts have always been allowed to exercise a degree of freedom), have proven that German courts are also capable of elevated thought and creative ideas if they are allowed free play.
The Austrian Supreme Court has a way of adhering to the words of the statute with scrupulous meticulosity, and rarely with beneficial results. Granting that its decisions have many excellent characteristics in other respects, yet it has become manifest that a preference for strict interpretation does not even assure the advantage of certainty. Words are extremely imperfect tools, and nobody has ever succeeded in mastering real things by means of mere words.
How has it been possible, notwithstanding the many influences pushing in the direction of technical decision, that the administration of the law has so often been able to throw off its fetters?
For one thing, law is not a rigid dogma, but a living power. The mere fact that a statute has been adopted does not prove-that it is in force, and from the intention of the legislator you can by no means infer how it may work out. The various civil codes consist in part of statutes proper, in part of codified lawyers' law. But no matter how nearly alike you may make the two externally, you will never succeed, for example, in giving the same force to the rule relating to the retroactive power of performed conditions as to the prohibition of usurious contracts. Lawyers' law, if for no reason but that the State as such has no particular interest in its subject-matter, is always in essence an instruction imparted by "written reason," rather than a command. But even a statute proper is really effective only by its indwelling force. If it cannot overcome the resistance of the environment it loses its vigor, is applied erroneously, or grows absolute. There is some consolation in the idea that the administration of law sometimes attains simple justice in a roundabout way when a statute blocks the straight road. At the same time it is not the business of legislation to compel it to take the roundabout road.