In the days of the Law of Nature theory, when people believed in a natural law over and above positive law, the judge decided according to this Law of Nature whenever he modified a positive rule. Consequently his decision "praeter" or "contra legem" could not give rise to any particular problem. This is still the case in decisions according to the unwritten law, in Anglo-American jurisprudence.
When faith in this higher law as given by Nature began to wane, the "intention of the legislator" became a welcome substitute. A distinction was drawn between statutory and customary law5; in default of a basis of custom the decision had to be fitted into some statute as best it might. To that end the judge reverted to what the legislator was supposed to have intended, or what at least he might have intended. This presumptive intention became the actual intention of the legislator. Modern judicial interpretation, however, is not satisfied to do this. The intention of the legislator proves to be a fiction, and the judges, anxious for something to lean on, cast about for a new support. One theory maintains that such support is offered by a "justice based on the adjustment of interests."6
5 Development of law by "convention" is but a sub-species of statutory law. Comp. my "System der Rechts- und Wirtschaftsphilosophie," vol. 3 ("Philosophie des Staates"), Munich, 1906, pp. 325-331.
This theory of "adjustment of interests" demands that the judge proceed in analogy to the legislator by a careful weighing of all the interests affected. However, even if we were to overlook entirely that the interests to be weighed would be mostly of an imponderable character, especially in the various fields of public law (criminal, political, administrative, international, and ecclesiastical law) - is it at all correct, historically, that law is the outgrowth of a balancing of the interests and needs of the various sections of a commonwealth? On the contrary, has not rather each substantial and fundamental change in the law been the result of a struggle and the victory of one part of the community over the other - a struggle, to be sure, under the banner of a more modern and advanced idea of justice, and a victory of law purified over a stagnating condition that had come to be felt as unjust?
6 Compare Stampe, "Rechtsfindung durch Konstruktion," Deutsche Juristenzeitung, vol. 10, 1905; pp. 417-422; "Rechtsfindung durch Interessenwagung," in Deut. Juristenztg., vol. 10, pp. 713-719 ("interests found worthy of protection" are to be decisive, loc. cit. 417, 717); "Gesetz und Richtermacht," in Deut. Juristenztg., vol. 10, pp. 1017-1022. Mueller-Erzbach, "Die Grundsatze der mittelbaren Stellver-tretung aus der Interessenlage entwickelt," Berlin, 1905 ("Real method of law formation"). Rumpf, "Gesetz und Richter," Berlin, 1906, pp. 81-87 ("Finding values," and "Weighing of values").
Compare further: Heck, "Die Fortbildung des burgerlichen Rechts im Wege der Rechtsverordnung," in 46. Jahresbericht der Juristischen Gesellschaft zu Berlin, 1906, pp. 72-84. (Contra Stampe, loc. cit. p. 79.) Heck, "Interessenjurisprudenz und Gesetzestreue," Deut. Juristenztg., vol. 10, pp. 1140-1142. "Was ist diejenige Begriffs-jurisprudenz, die wir bekampfen?" in Deut. Juristenztg. 14, pp. 1457-1461. (Page 1460: The main task of administration of the law is to inquire into the connection between legal rules and the condition of interests, in other words: the investigation of interests.)
Contra: Landsberg, "Das entgegengesetzte Extrem?" in Deut. Juristenztg, vol. 10, pp. 921-925. Vierhaus, "Die Freirechtsschule und die heutige Rechtspflege," Deut. Juristenztg., 14, 1909, pp. 1169-1175. Comp. alsoM.Rumelin, Address: "Bernhard Windscheid undseinEinfluss auf Privatrecht und Privatrechtswissenschaft," Tubingen 1907, p. 24.
According to Regelsberger, "Gesetz und Rechtsanwendung," Jher-ing's Jahrbucher, 58, 1910, pp. 146-174, "the judge is indeed bound by the existing rule," but Regelsberger distinguishes, primarily in private law, between inflexible rules of law, incapable of development by jurists, for instance Sec. Sec. 90, 253, 246, 656, 762-764, 1297 BGB; and legal rules capable of development (loc. cit. pp. 155 seq.).
The great gains for freedom during the centuries since the end of the middle ages were only obtained by the assumption of new powers on the part of those formerly subject to power, and not uncommonly by threats of force, or actual use of force. Such was the process which led to the liberation of secular concerns from ecclesiastical oppression; the political emancipation of the middle classes; the raising of the peasantry from serfdom; the giving of political equality to the Jews; the economic freeing of the propertyless workingmen; and finally, quite recently, the social and professional emancipation of women.7 And similarly, it is changes in cultural or social points of view, and in substantial relations of power or economic conditions, that have opened the way for newly arisen or transformed legal notions, - when for instance criminal law and procedure, from the Caroline to modern days, were changed radically and now again seem to need reform; or when in the future intercourse of nations the idea of arbitration takes the place (as it ought) of diplomatic intrigues; or when through the increase of economic relations beyond the national boundaries it becomes desirable to unify commercial laws or patent and copyright laws.
7Comp. my "System der Rechts-und Wirtschaftsphilosophie," vol. 2 ("Die Kulturstufen der Rechts- und Wirtschaftsphilosophie"), Munich, 1905; vol. 3 ("Philosophic des Staates"), Munich, 1906.
In all such cases the legislator has nothing to do with the "weighing of needs or interests," and could do nothing with it. And the courts quite as little. Just as well, or just as ill, as on the basis of the "justice based on needs or interest" might cases be decided by the throw of dice. The "justice based on needs or interests," which in the last analysis may be reduced to Jhering's utilitarian theory,8 offers an erroneous standard for the weighing of the unweighable. Moreover, it puts profit and advantage in the place of right and justice, so that the function of doing justice would be degraded to a mere act of administration. Thus it signifies in reality the exact opposite of what it believes and claims to be.