From the fact that modern judges are Government officials charged with the administration of the law, and from the conception of law as a command given by the Government to the judge, arises the supereminent importance now attributed to the written law among legal sources. For in a statute it is apparent, in a far more direct manner than in any other form of law, that the Government addresses a command to its officials. Whoever inclines to conceive of law as a governmental command will find himself compelled to consider every rule of law more or less as if it were a statute.
As a matter of fact the prevailing theory regarding the sources of law does take that ground. It is true that the introductory sections of textbooks will assure us that customary law is of equal force with written law. Yet, if one looks at the actual practice rather than the verbal expression, one will soon come to the conclusion that treatises, manuals, essays, and decisions proceed from an assumption - never, of course, openly confessed - that there is really no law except statutory law. Those who have not grown up in a bureaucratic State, but have seen living customary law in actual practice, will find it difficult to understand the traditional lore about customary law, such as the doctrines of its "origin," its "presuppositions," the question whether a statute may prohibit the derivation of a rule from custom (although that is all the time supposed to be of the same binding force as the written law), or whether it may restrain such derivation by burdensome conditions. When these doctrines regarding the application of customary law were formulated, almost in the form in which they are taught now, by the jurists of the 17th and 18th centuries, the intention was merely to give to the bureaucratic judges a standard by which to determine the validity of customs derived from Germanic law, which were always looked at invidiously and which had to be pleaded and proven by the party. To-day such doctrines are obviously no longer in accordance with the times, and no doubt scientific reexamination will put an end to them.
The essential nature of the bureaucratic State is expressed by the fact that for us the statute is the predominant form of law. Similarly, the content of the law of the bureaucratic State depends on the essential character of that form of government. In essence, such a system of law is simply a rule of decision. Its exclusive or almost exclusive purpose is to direct officials how to deal with the matters intrusted to them, and particularly how to decide legal controversies. That is, of course, a very one-sided conception; for law as a rule of decision may indeed be the side of law most interesting to the lawyer, but it is by no means the only and not even the most important side. Law exists for other very different purposes in addition to the settlement of controversies. It is the very foundation of the social organism, or (to use an expression of Schaffle, already growing antiquated), law is the skeleton of the social body.
It is true that social arrangements do, in most cases, furnish the rules by which disputes growing out of such arrangement have to be decided; that, however, is manifestly but a subordinate, secondary function. The by-laws of an association may, under some circumstances, provide a useful basis for the settlement of a legal controversy; yet those by-laws serve, first of all, to regulate the work of the association. When the Austrian Civil Code provides that the husband shall be the head of the family, it defines correctly the organization of the family as it exists to-day; but it does not thereby furnish a rule of decision for controversies, and perhaps does not intend to give any. We all know that in Rome an "obligatio" could arise out of an agreement to do all sorts of things; yet, as long as the classical form of procedure continued, the judgment was always for the payment of a sum of money. The rule of decision did not correspond with the legal nature of the relation- "aliud erat in obligatione, aliud in solutione." Eck, in a well-known essay, explains how in Rome a sale was a contract of transfer of title, exactly as to-day, although the rule of decision in the Roman law provided a liability merely on the ground of a license to take possession. The clearest case of a difference between a rule of decision and a rule of action is that of "obligatio naturalis"2 - a duty actually arises out of it, yet its existence cannot be made the basis of a judgment for the payment of money.