Let us first speak of the participation of the English judges in the adoption of rules of procedure. Here we should note the following: from a purely technical point of view, no distinction is made in England between statutes regulating the organization of the courts and those providing rules of procedure. The same statute will both establish some particular court and regulate its mode of procedure. However, the statute does not regulate all the details of procedure, but restricts itself to some more or less exhaustive general directions. The details are provided by what is known as the "rules," analogous to what with us are known as "Ausfuhrungs-Bestimmungen" or executory provisions. These are naturally far more voluminous and important than the provisions of the statute. The ordinary rules of the High Court of Justice and the Court of Appeal number no less than 1045 sections, while the Judicature Act of 1873 has altogether but 100 sections. The code of procedure proper is therefore to be found in the "rules."
Within the scope authorized by the statutes these rules have all the force of a statute. Moreover, the legal force of the rules is unlimited, so that even statutory provisions may be modified by them unless that is expressly prohibited, or such provisions are part of the very statute authorizing the adoption of the rules. The fact that rules adopted by the courts may be valid even in derogation of statutes is shown by this, that some statutes expressly prohibit the amending of particular statutory provisions by such rules. This would be meaningless unless it meant that rules can amend statutes.
The participation of the English judges in the development of the law of procedure would seem to be entitled to a good deal of attention. The question might well be raised whether it would not be practicable to introduce a similar plan in Germany, avoiding some of the objectionable features. To be sure, the difficulties would be increased by our federal form of constitution. This matter, however, can be merely mentioned and not be further pursued in this place.10