There are two aspects of the certainty of the law, just as there are two aspects of its uncertainty. One has reference to the actual enforcement of recognized (i.e. existing) law, and the rarity of conscious violations. This aspect was in the mind of the Oriental sage who represented the ideal legal condition as one in which a beautiful woman, adorned with all manner of precious ornaments, might travel throughout the country alone. This kind of certainty of law was missed very much throughout mediaeval Europe. Up to a certain point law must always yield to the circumstances, else it cannot be taken for real or positive law. Where within a society (not necessarily with regard to strangers) robbery is a general custom, it is evident that the conception of property is so little developed that one cannot speak truly of the violation of property rights. Where all are stealing none is a thief, as a Russian proverb aptly puts it. It must be possible, to some degree at least, to consider the rules of law as the natural laws of society. What ought to be must to some extent be identical with what is.16 But the degree of this identity varies. It will rise as the State becomes stronger, for the State represents the feeling of solidarity of all members of the nation. The State, as a matter of fact, has substantially succeeded in establishing the certainty of law in this sense. Open opposition by force has been suppressed almost entirely. The battle is now against the more insidious forms of opposition, such as corruption, theft, the concealment of criminal acts, abuse of legal process, as well as against negligent disregard of law. The other aspect of uncertainty of law is caused by the difficulty of knowing what the law is. An example of
15 I cannot resist the temptation to recall an excellent observation of Nietzsche to the effect that we are by no means indifferent to our own concepts and mental images, but are fond of some and constantly recall them, while we have a dislike for others and try to exclude them as much as possible. We may mention such ideas as death and illness. In the face of every mathematical calculation the chances of winning always look greater than they are to the gambler, because he is constantly calling them up in his mind. This is the reason why lotteries, raffles, and the like are so immensely profitable.
16 Bierling ("Kritik der juristischen Grundbegriffe," vol. 2, sects. 250, 257, and excursus B, page 353) differs from the above in part. He opposes Zilelmann, who draws a parallel between natural and juridical law in his work entitled "Irrtum und Rechtsgeschaft." Natural laws are distinguished from normative laws by their absolute universality. They tolerate no exceptions and are therefore conceived as qualities of the objects themselves, while norms of law or morality are external commands derived from some third authority such as God, the State, etc. (Comp. Wundt, in the introduction to his "Ethik.") confusion of law is afforded by the conditions prevailing in Germany after the reception of the Roman law. The remedy against this kind of uncertainty must be found in the perfection of legal science. The postulate of certainty in juridical thinking, which was mentioned above, has to do with this aspect of legal certainty only. It has reference to the degree of certainty with which may be discovered, in each case of a conflict of wills, what the law is in regard thereto. The characteristic of the highest possible degree of such certainty would be that all results of juridical thinking, in other words all decisions of the courts, would be uniform and predictable, i.e. could be exactly calculated in advance.
Now have we a right to call this postulate of certainty the distinguishing and characteristic quality of juridical thinking? Is this its specific form of precision and exactness? I am afraid the answer must be in the negative, although I appreciate fully the progress made in this direction and do not wish to make unscientific and extreme statements.17 I might cite a number of expressions that seem to be based on a similar conclusion. While the codification of the civil law of the German Empire was in progress, some men of the highest learning and official position took occasion to express the opinion and expectation that some of the defects for which the draft code was blamed would in practice be remedied by the courts. Evidently this implied the presumption that the courts might interpret the same statute either one way or another without offending against their legal duties and especially the canons of juridical thinking.
It implies the assumption of a considerable degree of elasticity of juridical thinking, when von Schey is of the opinion that legal science will find ways and means of emphasizing economic considerations as opposed to the purely abstract treatment of the law of property in the German code provisions,18 or when Dernburg suggests to the courts that they help out the defects of the code in connection with the prohibition of counterclaims in case of actions for certain kinds of wages by the manner in which they apply the law of liens; or when, as Exner does here in Austria in his treatise on "Hypotheken-recht" 19 the courts are asked to find a remedy for the inequitable results sometimes following confusion of goods when a mortgage is extinguished. Still more important than such individual views are legal institutions which are evidently based on similar assumptions. The forms of civil procedure are obviously arranged on the assumption that ordinarily each party is convinced that he is right.20 This is particularly apparent in those jurisdictions where the losing party does not necessarily have to bear the costs. For if conscious wrongdoing were involved, it would not be sufficient that the wrong be declared to be such and a remedy afforded. The wrongdoer ought also to be punished.
17 Some people have even talked about fashions in the administration of justice.
The matter is still clearer in connection with the institution of advocacy. If in a criminal proceeding it is the business of the attorney for the prosecution to demand punishment, while the attorney for the defense will ordinarily conclude that the facts, which possibly are undisputed, require a verdict of not guilty, one would have to call that whole institution immoral, if it were true that correct juridical thinking always had to draw exact conclusions from a given state of facts. For one or the other, either prosecutor or defender, must then be either an ignoramus or a perverter of justice.
18 Paper read before the Law Society at Vienna, February 5, 1902.
19 Section 20.
20 That implies an admission that the parties may infer the existence of opposite rights from the same state of facts. In this connection we must exclude those cases where the facts themselves are doubtful and are not ascertained except in the course of the trial.
Similarly, the ineradicable opposition between theoretical thinkers and the actual practice of the courts indicates the elasticity of juridical thinking. In the resulting warfare, the courts are given to ignoring the authority of theoretical jurists,21 while these retaliate with polemical writings. Again, there are numerous scientific controversies evidently not capable of settlement by simple exchange of arguments.22 Later on, we shall show how this uncertainty is partially concealed by representing a large part of juridical thinking as an inquiry into the facts. This does not, to be sure, eliminate the coefficient of uncertainty, but for reasons of proper decorum removes it to a place where it does not create the impression as if the judge himself were incapable. If the fact of uncertainty is to be seen in all its nakedness, one has but to observe the guessing process that goes on regarding the decisions of our courts of last instance, in which the facts are taken as they were found in the courts below, and where ordinarily there is but one question: What is the law applicable to these facts?
A layman is likely to be surprised and annoyed if in case of a legal dispute he cannot get a categorical answer or is given several conflicting opinions. According to his idea that is what lawyers are for: to give definite answers. The lawyer himself has become used to this condition of things, but ordinarily he does not give an account of himself regarding the general reasons for such uncertainty. Frequently negligence in the drafting of statutes is blamed for such controversies. There is often some truth in this, but this feature falls far short of covering the whole field of legal uncertainty. Aside from this, however, lawyers are mostly without general notions regarding this matter and content themselves with talking vaguely about the difficulty of particular cases. This explains the reasons for the complaints frequently made, that it is impossible to train practical lawyers by academic instruction.23 The young lawyer is usually quite unprepared for this greatest difficulty in the administration of law. He leaves the law school with courageous confidence in his ability to solve problems, and learns by slow experience how difficult they are, till gradually he gets rid of intellectual conceit and rashness.24 These are questions, however, which I shall no more than suggest, and instead we may now come to the following conclusion:
21 Opinions rendered by lawyers will not be considered by the courts. Compare with this the high importance attached by our courts to expert opinions rendered by university faculties of medicine.
22 For instance, let anybody submit the collection of civil cases made by Jhering ("Zivilrechtsfalle ohne Entscheidungen") to a number of jurists for their opinions.
This second ideal, certainty of the law, also fails to justify us in inferring that such certainty is a characteristic quality of juridical thinking.25 It is necessary, therefore, to inquire what may be the reason for such uncertainty, by what means it has been mitigated, and how and to what extent it may be still further mitigated.