It would be interesting to consider in detail the propositions briefly sketched above and especially to trace the parallelism existing between legal history and the general development of civilization. That, however, cannot be the subject of our present discourse. Instead of it we shall approach these problems from a different angle.
5 [The allusion is to the term "richtiges Recht" or "law conformable to justice," brought into fashion by Stamtnler; see the translation of his work in vol. viii of this Series.- Transl.]
6 2d edition.
Both those writers who believe that they have found the true cause for the deterioration of our courts in their faulty organization, and those who are represented by the school of free decision (I may mention especially Ehrlich) have pointed to England as a model and at the same time as proof of their contentions. There, they say, all those things are actually to be found in practical effect, which at home we can merely discuss as theoretical desiderata. Now it seems that the reality of English courts and their organization is something very different from what German reformers imagine, as has been amply proven.7 Yet it may be desirable also to bring together some historical material which may throw light on the relation of the courts to the law, and especially to examine in some detail the question whether English judges are really in the habit of doing those things which are demanded of our own judges, with increasing vehemence. Such an investigation would seem to be desirable all the more because German writers (again I mention Ehrlich 8) surprise us by comparing the English judge to the Roman praetor, while at the same time this idea is most strenuously repudiated, among English writers, by men of the greatest scholarly reputation, as for instance Bryce.
Accordingly, I desire to discuss the question of the relation between the English judges on the one hand, and English law, together with its development, on the other. I must limit my subject, however, in a certain direction. I do not intend to enter upon a discussion of the method adopted by English judges for the interpretation of formulated law, although an exhaustive and strictly systematic treatise of this sort would no doubt help us to realize the differences and similarities of legal interpretation in England and Germany far better than a mere collection of cases selected for that purpose. For the individual peculiarities of each separate case tend to hinder an insight into general principles, or at least make their comprehension disproportionately difficult. As I have said, we shall not discuss herein the interpretation of law by English courts, and may define our subject more narrowly as an attempt to answer the question, To what extent do English courts take part in the further development of their own law?
7 Comp. especially my paper on "Die englische Gerichtsverfassung n ihrer gegenwartigen Entwicklung und die deutsche Gerichtsreform."
8 "Freie Rechtsfindung und Freie Rechtswissenschaft," a work very interesting in itself, and expressing clearly many of the ideas afterwards discussed by Adickes.
In this regard we must distinguish two things. On the one hand we observe that the courts exercise directly legislative functions to no inconsiderable extent, by themselves making the rules of procedure for the various courts, or at least by taking part in formulating them. On the other hand, we find that the courts play an indirect part in lawmaking by the rule that the effect of their decisions is not limited to the specific case decided, but goes beyond that and becomes a new rule of law. By rendering a final decision in a case, the court does not only act judicially but also legislatively, by creating, as the English phrase has it, a precedent. He becomes a creative producer of law; he establishes a new rule. We need hardly emphasize the point that it is this possibility which has the greatest interest for us. It is this function of the English courts to which the adherents of free decision call our attention. The part played by the English judges in making the rules of procedure has in most cases been mentioned only incidentally by our writers.9
9 A more detailed treatment only in Mendelssohn. "Englisches Rich-tertum im Court of Criminal Appeal," pp. 41 seq.