Certain it is, first of all, that the primary task of legal science, to inquire into the meaning of legal rules, will retain its rank. Modern, civil codes require scientific interpretation more urgently than any other species of formulated law. They are themselves the result of legal science, and are capable to a much higher degree than ordinary legislation of being perfected, and developed by jurisprudence.
The discovery of the hidden meaning of formulated or unformulated law, however, is by no means the whole of the task. A legal rule must be treated not like a rigid dogma but like living energy. After one has found the meaning of a legal provision, obviously he still has to show how it works. That, however, does not depend on its interpretation, but on its inherent force, the nature of the society for which it was made, and the character of those who apply it. It is the business of legal science to teach the law as it actually works.
Whoever knows but the "intent of the legislator" is still far from knowing the law that is really in effect.
In this sense the traditional, dogmatic conception of law may be contrasted with a dynamic conception. For the latter, the problem is not simply to know what a rule means, but how it lives and works, how it adapts itself to the different relations of life, how it is being circumvented and how it succeeds in frustrating circumvention. Whoever assumes, as is done so commonly by the traditional school as a matter of course, that the law works out precisely as the legislator intended, ignores the long distance separating the instrument from the performance and the performance from its consequences in all human affairs. Heretofore the historians of the law have been almost alone in inquiring how the law actually works; occasionally economists and specialists in commercial law have also done so, but to the systematic student of the law such questions have unfortunately, for the most part, seemed outside of his proper sphere.14
Here we must turn first to the decisions of the courts. From these principally we may learn the "jus quod est," from them alone we can gather what rules of decision have actually entered into daily life, and how they have done so. But it is not enough to cite decisions in a text, or in notes, and to approve or condemn them according as they are deemed correct or otherwise. A legal decision is always the result of a number of factors influencing the judge; meaning and text of a rule is one of these factors, but not the only one. Every decision expresses some actually existing social movement; even the most abstruse scholastical reason, the most manifest misinterpretations or conscious perversions of law, at least help to show these facts as coefficients of social tendencies. One of the duties of legal science is to examine the origin, nature, effect, and value of the tendencies that become apparent in legal decisions, and thus to furnish a picture of what is going on in the administration of justice and what the causes thereof may be.15
14 In my work "Das zwingende Recht und nichtzwingende Recht im burgerlichen Gesetzbuch fur das Deutsche Reich" I have tried to treat the German Civil Code in that manner. This, however, is particularly difficult in regard to a system of law still in course of development.
Next come the actual legal transactions as such, even when they have given no occasion for resort to courts or governmental agencies. So far as boards of trade, banks, factories and shops are concerned, we can extract some instruction from the literature of economics and commercial law; similarly, as regards the conditions of labor, from sociological writings such as have furnished the material for Lotmar's broadly conceived work.16 The enormous mass of material piled up in the offices of notaries and recorders of deeds still waits for the investigator. How much might be garnered here, not merely from the economic but also the juristic standpoint, is sufficiently apparent from works like that of Bartsch on the Austrian law concerning the recording of titles to real property. How far in advance of the systematic lawyers are the legal historians in the scientific treatment of archives! As far as I can see, there is not, in all of legal literature, a single scientific work on the science of modern legal documents. That is why it is possible to dig through a whole library of works on testamentary succession, to find therein numbers of clever and sagacious rules of construction but not a word to show what sort of wills are commonly drawn at the present time.
15 In my paper on "Die stillschweigende Willenserklarung," I have tried to make use of the decisions in this manner.
16 [SeeLotmar, "Der Arbeitsvertrag," 2 vols. Leipzig, 1902, 1908. -Transl.]