This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
Next came the school of "free judicial decision," which in appearance took to heart what has been said here and attempted to elucidate scientifically the "mysterious saying," "La loi n'est pas le droit." Its adherents start from the proposition that a statute does not contain a comprehensive rule for the decision of cases. According to this school there are nothing but "specific decisions." The application of a statute should be limited, therefore, "to those cases which the statute itself decides." The statute is to be resorted to first, but only in those cases which it mentions specifically. In all others there is to be a "truly free" manner of decision.43
Such a notion as this, however, does not get us much further than the existing doctrine. In the first place, Fuchs goes too far when he conceives all statutory provisions as "specific decisions." The statute never decides a specific case but establishes general rules.44
Precisely for this reason it is not possible to draw a sharp distinction between statutes that provide for all cases and those that contain "gaps." The line is seq. Also: Bulow, "Gesetz und Richteramt," pp. 41 seq.: Hartmann' in: Archiv. Ziv. P., vol. 73, pp. 309 seq., 400 seq.; Zitelmann, "Die Rechtsgeschafte," pp. 1 seq., "Kunst der Gesetzgebung," Dresden, 1904, pp. 40 seq.
43 Expressed in the most radical and exaggerated manner by Fuchs, "Recht und Freiheit in unserer heutigen Justiz" (Berlin, 1908), pp. 14, seq., and again: "Die Gemeinschadlichkeit der konstruktiven Juris-prudenz" (Karlsruhe 1909), especially pp. 75 seq.; comp. also Gmelin, "Quousque!" (Hannover 1910); Sinzheimer, "Die soziologische Methode" (Munich, 1909). Contra: Duringer, "Richter und Recht-sprechung" (1909, and also in the paper "Eine neue Methode," etc., in Das Recht, 1909. - Cf. also Cruet loc. cit. (note 1).
44 In principle this is true even of statutes drawn so as to cover specifically the various cases, and still more so our modern statutes. In these it seems entirely proper "to adhere to the principle of progressing beyond specific provisions toward general rules." (Huber, "Erlau-terungen zum schweizerischen Zivilgesetzbuch," 1902, p. 24.) Comp. also: Gmur, loc. cit. pp. 27-28; Billow, loc. cit. pp.30 seq.; Geny, "La Technique legislative," in "Livre du Centenaire du Code Civil," vol. 2, pp. 989 seq.
altogether vague. A statute is never likely to contain an absolutely exact and direct decision of a case as it arises, for there will always be some features with which the abstract rule of law cannot concern itself. For these a supplementary rule of specific application, established by the judge, seems to be absolutely necessary. The distinction made by Fuchs, according to which the statute is to be limited to the decision of cases for which it specifically provides, is therefore erroneous in theory and cannot be carried out in practice. We should rather say that the general framework furnished by the statute is to be filled in, for each case, by means of interpretation, that is, by following out the principles of the statute.45 In every case, without exception, it is the business of the court to supply what the statute omits, but always by means of an interpretative function. It is, in fact, the urgent task of legal science to establish in an exact and practical manner the fundamental principles of the proper method by which the courts may supply such omissions.