e., the Elimination from the Law of All Oppressive Action. The Law of Nature furnished, or attempted to furnish, a legal order, more or less in detail, which was to serve as a model for positive legislation. To-day, however, the only possible aim in developing the principles of "freedom of decision" must be to find limitations and bounds of such principles, "ultra quos citraque nequit consistere rectum," -bounds which ought to be drawn against an inequitable application of the law.
While the Law of Nature established rules.of law, "freedom of decision" must confine itself to fixing the exceptions to the general rule, in other words, to showing those principles which must not be violated by application of the law. Thus the function of the principle manifests itself by suspending the established rule in exceptional cases.
Here is an essential difference, both as to substance and function, between the principles of the Law of Nature and "liberty of decision." There is, furthermore, another and fundamental contrast between the means of finding those supra-legal norms of "freedom of decision" that are able to break the established rule, and the method of the Law of Nature. For the latter was, essentially, deductive, while our manner of proceeding must be made inductive. For our object is not to insure that Judge A or Judge B, on the basis of a purely individual opinion, shall "decide according to the rule which, if he were legislator, he would establish."26 It is rather, to find, by scientific proof, those objective principles of law which must be complied with under any circumstances, whether the established rule, in letter and spirit, agrees therewith or not.
Legal history proves that principle, from which all the rest must be deduced, to be the idea of liberty.27 All law implies dominion - dominion of the law. Legal history shows that the primary, essential, and fundamental matter is not the legal norm (command and prohibition) but rather the fixation of positive rights; expressed differently, the transformation, by means of law, of actual relations of power or dominion into legal power or legal dominion.
In primitive ages all dominion is one of religious law. There is provision for a King-priest; sacredness of property; procedure in forms sanctified by religion; extermination under religious sanction of the criminal, who as has polluted the commonwealth, by sacrificial death or outlawry.
In the second period of legal culture, dominion has been converted into an ethical form. There is absolute power of tyrant or oligarchs; an absolute claim of creditor against debtor going even as far as a right of killing or enslaving him ("nexum"); unlimited rights regarding property and members of the family; procedure considered as a contest; in criminal law, the principle of retribution.
In the third and - up to the present - last period of civilization the nature of law as a relation of dominion and power is preserved in principle but limited and mitigated by synthesis with the ethical idea of liberty.28
26 Swiss Civil Code, art. 1, chapter 2. Compare in this connection, Rumelin, "Das schweizerische Zivilgesetzbuch und seine Bedeutung fur uns," Tubingen 1908, pp. 31 seq.
27 Comp. with this and what follows, my "System der Rechts- und Wirtschaftsphilosophie," vols. 1-5, Munich 1904-1908.
Under the influence of the notion of liberty (or what means the same thing, the idea of humanity) constantly greater numbers of men, and at last the whole of mankind, are recognized as possessing legal rights, as capable of exercising legal rights, as entitled to be considered by the law as "personae." For this reason every form of enslavement is eliminated from the law: from constitutional law, by abolition of absolute government, establishment of written constitutions and introduction of parliaments; from administrative law, by the responsibility of ministers, administrative courts, and self-government; from criminal law, by the abolition of inquisitorial procedure and cruel punishments. In private law, the prohibition of slavery began at a relatively early time, but emancipation of the debtor proceeded but slowly (remember imprisonment for debt!). At last the most recent age, reaching into the present, has arrived at the comprehension of the connection between law and economics, and that a contract of service, entered into under the forms of freedom of both parties, must frequently result in the economic enslavement of the economically weaker party. Thence arose changes in law which are connected with the movement of social ethics - an expression often vaguely enough conceived. The idea of liberty will be found to be both the cause and the limitation of this infusion of ethics into the law. In pursuance of this idea the established order may be suspended precisely so far, and no farther, than is required to avoid the economic enslavement of those whom that order affects.
28 Hegel, "Grundlinien der Philosophic des Rechts," Sec. 142: "Morality is the idea of liberty. . ."
From this idea of liberty, without the intervention of a statute, follow the illegality of combinations in restraint of trade that eliminate competition or the freedom of commerce, the illegality of boycotts, the invalidity of a contract of service with excessive hours of labor, and so forth.
The perils of the movement for "freedom of decision" are not to be found in its mere existence. On the contrary that means a step in advance if it implies a recognition of the fact that the "intention of the legislator" is a figment of imagination, and that a slavish adherence to the letter of statutes and rules must lead to the ossification of the administration of justice.
The real danger, and a very considerable one it is, does lie in this, that under the sway of "freedom of decision" the courts will be guided by mere sentiment; and to-day, during the high tide of the movement for social ethics, that sentiment may be downright sentimentality.29 This danger is increased still more, where it is attempted by means of talk regarding the judges' alleged ignorance of the world 30 [Weltfremdheit] - a phrase as common as it is false - to seduce the judge from his office of administering justice into the acquisition of miscellaneous bits of information, which will ever remain mere amateur work. The danger will be heightened immeasurably if the participation of laymen in the work of the courts should be increased still more.31 Formerly the fundamental right of the citizen was
29 Compare also the excellent remarks of Laband, "Rechtspflege und volkstiimliches Rechtsbewusstsein," DJZ, vol. 10, pp. 10-15.
30 Contra, Duringer says well ("Richter und Rechtsprechung," Leipzig, 1909, p. 49): "The authority and reputation of the courts cannot be lessened by an objective criticism of their functions."
31 Against this, Sohm says excellently ("Ueber Begriffsjurisprudenz," DJZ, 14, pp. 1019-1024, 1020, seq.): "We have the learned judiciary and propose to keep it, for the learned judiciary, and that alone, is the pillar of justice, reigning impartially and without regard for persons." properly adhered to, according to which nobody could be deprived of his day in the ordinary court.32 The principle of "balancing of interests" will multiply rather than lessen these dangers; for the "weighing of interests" is most easily done by sentiment, and hides at the same time the fact that it proceeds merely from sentiment. Yet even under the rule of freedom of decision, it is the business of the court to administer justice. .
The court may transcend the bounds set by the letter of the law, but must not do so with the aim of superseding the legislator according to his subjective notions. He should do so rather according to "approved doctrine and tradition,"33 and be fully imbued with the consciousness that in doing thus, also he is the servant of justice. For law is law and must prevail.
32 Comp. Laband, loc. cit.
33 "Schweizerisches Zivilgesetzbuch," art. I111.