Yet there are still further problems of quite a different nature waiting for legal science to solve them. Whoever desires that we possess a body of creative decisions must of course desire also a creative science of law. Manifestly, the tasks of the theoretical writer and the practical lawyer are closely akin. The task of the modern jurist cannot be essentially different from that of the jurist in all past ages, and especially from that of the Roman jurist. It would be a great mistake to imagine that the theoretical disputes of the Romans had to do with what were the traditional rules. Their discussions turned rather upon what would be the juster and more useful decision. As far back as Savigny and his immediate pupils, legal science has been called one of the sources of law, and ever since the celebrated paper by Jhering on "Unsere Auf-gabe" appeared, there has been no lack of voices calling for a creative science of law. Even the old civilian science was creative to a degree, - although it did not by any means aim to be so. The law of possession, of agency, of contracts between absent parties, of agreements in favor of third parties, of unjust enrichment and many other subjects, may very properly be called the products of civilian science.
It is true that the desire to have an authority for everything, even where the authorities were obstinately silent, created obstacles at every step. What pitiful citations Jhering deemed it necessary to furnish in order to make palatable to himself and his contemporaries one of his cleverest ideas, the theory of negative interest in a contract! It is certainly not the business of legal science to predigest for the Court in the traditional manner of civilistic essays the decision of any case that might possibly come before it. In most cases the Court will be much better able to decide an actual case than any theoretical author can do in advance. This is a matter in which science must learn from the actual administration of the law, not the courts from science.
Sometimes, however, the conditions are of the opposite character. This is so especially when the courts misunderstand the great social, economic or political problems that may be involved in cases coming before them, and still more so where they are confronted with an entirely new subject which cannot be dealt with except by extensive investigations such as no man can undertake who is immersed in the ever-changing business of practical life. It would be deplorable if a legal science could exist without mirroring the great movements and intellectual currents that rouse and animate our times.