When is this "free application " by the court to take place ? The generally accepted opinion to-day inclines toward saying: The court may and should expound the law freely "praeter legem," but to allow a free application of law "contra legem" would amount to a straining of judicial power. As against that, one should inquire whether in reality an exposition according to the principles of "freedom of decision" can ever be merely "praeter legem," or whether it does not always take place against the formulated rule. Does the decision of the freely expounding judge simply supply a rule where none existed before, or are there no cases at all that are not covered by an existing rule?
The most searching inquiries into this subject are undoubtedly those of Bergbohm9 and Zitelmann.10
Bergbohm, in his radical opposition to the doctrine of the Law of Nature, tries to prove the unbroken unity of the law by invoking the "power of logical expansion"
8 Jhering, "Der Zweck im Recht," 4. edition, Leipzig, 1905. 9"Jurisprudenz und Rechtsphilosophie," I, Leipzig, 1892, pp. 371-393. 10 "Lucken im Recht," Bonner Rektoratsrede vom Oktober, 1902 Leipzig, 1903.
of the established law.11 Bergbohm's exposition itself has a logical unity of its own; but it starts from the assumption that all external relations not governed by established rules would drop into a "legal vacuum," no matter "how strongly they may call for legal regulation."12 But though German law, for instance, failed for a long time to adopt a specific rule for railway-accidents liability, and though to this day it has failed to enact specific laws regarding cartels and trusts, yet these matters did not "drop into a legal vacuum." On the contrary there is a rale for these matters, but a rule obnoxious to the sense of justice of our times.
Here is where Zitelmann's view offers us sound premises. He shows that (usually) the so-called "unprovided case" in law is not really unprovided for in the sense that there is no legal standard for the decision of such a case. "Rather, the truth is simply this, that in cases like that under discussion an exception is invariably made to some existing general rule. The status of such cases is that an exception from the general rule ought to have been made and this exception is based on that which one considers the purpose of the general rule. . . . Thus we see why there is talk of unprovided cases: The lack of provision consists in no exception having been declared for cases of this special character."13 The court evidently in such cases decides not "praeter legem" but "contra legem."14
11 "Jurisprudenz und Rechtsphilosophie," p. 387.
Contra: Jung, "Von der logischen Geschlossenheit des Rechts," Berlin, 1900, pp. 131-157; Stammler, "Die Lehrc von dem richtigen Rechte," Berlin, 1902, pp. 271-275; Rumelin, "Das schweizerische Zivilgesetzbueh und seine Bedeutung f iir uns," Tubingen, 1908, pp. 29 seq.
12 "Jurisprudenz und Rechtsphilosophie," p. 387.
13 "Lucken im Recht," p. 23.
14 Zitelmann, loc. cit. pp. 24 seq. "The supplying of rules for unprovided cases means that the court breaks through the general rule for this special state of facts, and finds a new rule, usually a further development of other special rules already in existence."
Of course this explanation does not apply when a statute expressly directs the court to decide according to good conscience, or according to the custom of business or trade. Here the law refers the judge to custom or equity as the material from which to frame his decision; but the source of the judgment is still the formal statute.15
In the genuine case of adjudication based on the principle of freedom of decision, the judge derives his judgment from a source of which it is admitted:
1. That it is not statutory law. 2. That it is not customary law.
3. That it is superior to the formulated law.
Thus the question, What is the source of this "liberty of judicial decision"? gives rise necessarily to the further question: What is the legal status of the judicial function, according to this theory of "liberty of judicial decision"? To that question we now turn.