15 Consequently it may easily lead to misconceptions if in cases of this kind one speaks of "judge-made law" or "judicial rules." Thus Danz, "Ruckstandigkeit der Rechtswissenschaft, Richterrecht und Gesetzesrecht: Neue Rechtsprechung," in Deutsche Juristenztg. 1911, no. 8, pp. 565-570.
The fact that Danz himself - and correctly - does not consider the court as a maker of law, with quasi-legislative functions, appears from his observation (loc. cit. p. 566, note 2a): "These are customary rules sanctioned by the statute (BGB)."
Compare also: "Danz, "Die Auslegung der Rechtsgeschafte," 3d edition, Jena, 1911.
16 Thus, with particular acuteness: Schlossmann, "Der Irrtum liber wesentliche Eigenschaften der Person und der Sache nach dem biir-gerlichen Gesetzbuch," Jena, 1903, pp. 34-43, 36-39.-Sternberg "Allgemeine Rechtslehre," 1, Leipzig, 1904, p. 138, seq. (No substantially definable boundary between legislation and interpretation.) Saleilles, "Einftihrung in das Studium des deutschen burgerlichen
That, however, is quite a mistake.17 In such cases, no less than in others, the court is aiming merely to render justice between contending parties, and by no means to enact a new administrative regulation. The purpose is to decide on the basis of some source of law supposedly already in existence, - irrespective of where it is to be found or how applied.
But, conceding this, is it then correct to maintain, as Zitelmann does, that there is a general maxim to this effect: "The law is whatever is found in this statute, but with certain qualifications (extensions and restrictions) to be found by analogy, etc."?18
This attempt at solving the problem will not hold water.19 For every statute purports to be in full and complete force, and if its effect is held to be in any way qualified, either this qualification must be expressed in the statute itself, or there must be a source of law superior to the statute. There must exist, then, a higher order of justice, no matter how scant in its data of materials, from which the court may derive both its authority to decide according to the principles of "liberty of decision," and also those principles themselves. The judge must have some such foundation if he is to administer justice, -if his decision is to be justified, both in his own conscience and in the eyes of the world, as a decision according to law. In no other way could the community escape that uncertainty of law which is properly regarded as an objection to the demand for "liberty of judicial decision."20 Hence the only conceivable alternative is that there are principles of law outside of the formulated rules of law.
Rechts" (in: Leonhard's "Studien zur Erlauterung des burgerlichen Rechts," Heft 14), Breslau, 1905, p. 91.
Compare also: Saleilles, "De la personnalite juridique"; Paris, 1910, p. 27: ". . . The directions for the creation of a foundation should be interpreted as the creator of it would interpret them if he were there, in order to accomplish the end he had in view."
Compare, further, the excellent expositions of Kohler, "Ueber die Interpretation von Gesetzen," Grunhut's Zeitschrift, vol. 13, 1886, pp. 1-61.
17 Correctly expressed by Zitelmann, "Lucken im Recht," p. 26. Excellently by Jung, "Von der logischen Geschlossenheit des Rechts," Berlin, 1900, pp. 146-148. Compare regarding this question, also Saleilles, "Einfuhrung in das Studium des deutschen burgerlichen Rechts," p. 95.
18 Zitelmann, "Lucken im Recht," p. 26, with a reference to a provision of this sort in the first draft of the BGB.
19 Nor is a solution offered by saying cleverly: "The code is an instrument of development, not of ossification." (Saleilles, "Einfiih-rung in das Studium des deutschen Rechts," p. 100.) For the code is the fixed result of a course of development, and as such it is indeed an obstacle to further development.
But is not this (one may ask) a return to the Law of Nature? By no means. Our relation nowadays to the Law of Nature is somewhat analogous to that between the alchemist and the most modern doctrines of chemistry, according to which the transmutation of particular elements into others appears possible. Like the modern chemists, we once more adopt, from a higher standpoint, in the light of recent discoveries, the available portions of earlier doctrines which during the intermediate period had been rejected altogether. The fundamental error of the Law of Nature consisted in this, that it believed in an eternal model of law, rigidly unchangeable and superior to established rules; and that at the same time it developed this model law in accordance with the ideas of atomistic liberalism, i.e. the ideas that the State is made up of the sum of the individual citizens, that formal liberties, like freedom of contract, of engaging in business or free trade, are simply "natural rights," and similar notions. To-day we have learned, in contrast to the Law of Nature doctrine, that law is changeable by nature; that it is subject to development; that it is relative. In the civilized State of the present day, certain fundamental legal convictions are held absolutely, - for instance, the inadmissibility of personal enslavement, freedom of religious and political convictions, inadmissibility of exploitation by means of labor contracts (economic enslavement), and so forth. All these things are legal maxims which every Court puts at the basis of his decisions, without requiring a section of some code as authority. These legal maxims override even the statutory law. These are legal principlec21 even though they have not existed from the beginning and may perhaps not continue permanently. But, accepting them merely as doctrines of our own stage of civilization, we are nevertheless here dealing with law,
20 Thus Heck, "Die Fortbildung des biirgerlichen Rechts im Wege der Rechtsverordnung." In "46. Jahresbericht der Juristischen Gesell-schaft zu Berlin," 1906, p. 78; Landsberg, "Das entgegengesetzte System," DJZ vol. 10, pp. 921-925. (On page 925: "Law has for its purpose certainty and stability.") Compare further Laband, "Rechts-pflege und volkstumliches Rechtsbewusstsein," DJZ vol. 10, pp. 10-15.
See also, very recently, Del Vecchio, "Sulla positivita come carattere del diritto" (Prolusione al corso di Filosofia del diritto, letta 1' 11. feb-braio, 1911, nella R. Universita di Bologna), p. 17: "The pretended freedom in the application of the law would in effect, besides being a theoretical inconsistency, constitute a permanent menace to the legal liberty of the citizens, which finds one of its principal conditions in the certainty and especially in the unshaken supremacy of the law."
On this point and on the further one that even the "extreme adherents of freedom of decision," like Ehrlich (Rumpf), Stampe, Gnaeus Flavius (Kanlorowicz) and Fuchs, desire merely to find rules for unprovided cases, in other words, hold freedom of decision proper merely "praeter," not "contra legem," see: Kantorowicz, "Die Contra-legem-Fabel." In: Deutsche Richterzeitung, 3, no. 8, of April 15, 1911, pp. 258-263.
21 To discover these principles is the task of the science of law, but in doing so the science of law is not a source of law as is erroneously stated by Gnaeus Flavius ("Der Kampf um die Rechtswissenschaft," Heidelberg 1906, p. 20). It merely utilizes the source of law in discovering and formulating such principles of law.
Kiss, who believes that the court has authority merely to find new rules "praeter legem" for unprovided cases, holds the most urgent task of a future theory of the sources of law to be the expression of the judge-made law so arising, as a part of the system of law in force, and as a most important element in the law actually administered. ( Kiss, "Billigkeit und Recht, mit besonderer Berucksichtigung der Freirechtsbewegung," in Archiv fur Rechts- und Wirtschaftsphilosophie, vol. 3, pp. 536-550; Kiss, "Gesetzesauslegung und ungeschriebenes Recht," in Jher-ing's Jahrbuchern, vol. 58, 1911, pp. 413-492, 473.
not with something outside of law. The
is supplemented and corrected by the The "natural" sense of justice varies according to the conditions of the time, the locality and the national character.22 At bottom, therefore, it is not an invocation of a Law of Nature, which is absolute, but of a Law of Civilization, which is relative.23
Accordingly, the judge who applies the principles of "liberty of judicial decision" decides (to be sure) against the statute but in accordance with the unwritten law. The source of his law is found in what is considered to be just at any particular period and within any particular circle of civilization.