No doubt can exist, therefore, that primarily a judicial practice which corresponds more closely to the needs of actual life may be obtained by a return to the Roman principle.
It must not be a question of working toward a "more independent position" of the judge. "There is so much talk about the difference existing between the functions of the modern and the Roman lawyer as regards the evolution of the law. It is claimed that the work of the latter constituted one of the sources of the law, while this function is denied to the labors of the former. In this there is at least some exaggeration, against which a protest should be raised, because it carries with it certain practical dangers."36 The true problem is merely that of applying better methods in the use of powers which the judge already possesses.
34 Gmur, "Die Anwendung des Rechts," p. 9.
35 Among many, cf. especially: Windscheid, loc. cit. Sec. Sec. 22 et seq.; Thol, "Einfuhrung," etc.; Regelsberger, loc. cit. Sec. 35; Dernburg, "Pan-dekten."-On recent works in Austria, cf. Pfaff-Krainz-Ehrenzweig, "System des osterreichischen allgemeinen Privatrechts," vol. 1 (4 ed., 1905), pp. 42 seq.-For French literature, comp. Laurent, "Cours ele-mentaire," p. 15: "On ne doit jamais separer l'esprit de la loi de son texte . . . le texte et l'esprit . . . c'est une seule et meme chose: la volonte du legislateur."
36 Regelsberger, "Streifziige," p. 16.
Like the Roman jurists, so should we also formulate and explain scientifically the method which makes possible the kind of judicial law described above, which must necessarily arise in the course of administering justice. We ought not "to represent as something theoretically impossible that which practically arises in a continuous current and is found quite indispensable."37