Science Of Legal Method | by Ernest Bruncken

"Until either philosophers become kings," said Socrates, "or kings philosophers, States will never succeed in remedying their shortcomings." And if he was loath to give forth this view, because, as he admitted, it might "sink him beneath the waters of laughter and ridicule," so to-day among us it would doubtless resound in folly if we sought to apply it again in our own field of State life, and to assert that philosophers must become lawyers or lawyers philosophers, if our law is ever to be advanced into its perfect working.

Title	Science Of Legal Method
Author	Ernest Bruncken
Publisher	The Boston Book Company
Year	1917
Copyright	1917, The Boston Book Company
Amazon	Science of Legal Method

Modern Legal Philosophy Series: Vol. IX

Select Essays by Various Authors

Translations By Ernest Bruncken, Washington, D. C.

And Layton B. Register Of The University Of Pennsylvania Law School

With Introductions By Henry N. Sheldon Former Justice Of The Supreme Judicial Court Of Massachusetts

And By John W. Salmond Solicitor-General Of New Zealand

General Introduction To The Series: By the Editorial Committee Until either philosophers become kings, said Socrates, or kings philosophers, States will never succeed in remedying their shortcomings. And if he was loath to give f...

Editorial Preface: The greatest question of legal theory nowadays in the arena of professional debate, both in Europe and America, is this: What is the inherent nature of the judicial and the legislative functions, and ...

I. The Judicial Function: The knowing what is just and what unjust, men think no great instance of wisdom, because it is not hard to understand those things of which the laws speak. They forget that these are not just acts exc...

I. The Judicial Function. Part 2: That is to say: If the legislative process were officially so organized that it worked perfectly, no occasion would arise for asking whether the judiciary could be freed from subordination to it. If t...

I. The Judicial Function. Part 3: (2) In the next place, where does the control of the statute stop? Is the legislative intent the sole criterion? Here a broad field of variant views is opened. Literally hundreds of views can be fo...

I. The Judicial Function. Part 4: This logical impossibility of fixing thought by a word is of course most strikingly seen in these changes generated by time,-in the questions whether automobiles are vehicles, under laws of sixty ye...

I. The Judicial Function. Part 5: The relaxation would not necessarily be as cataclys-mal as it might seem. There will always be a controlling influence by the abstract law, wherever a professional class fills the bench. This has been...

II. The Legislative Function: Everyone, it is true, may frame an hypothesis as he pleases, but yet it ought to be practicable. Aristotle, Politics, bk. ii, ch. vi, 1265a. Problems of legislation touch the field of science ...

II. The Legislative Function. Part 2: 9 Grasserie, Principes sociologiques du droit civil, Paris, 1906; Prin-cipes sociologiques du droit public, Paris, 1911, p. 13. 10 Cf. Kuhlenbeck, Natiirliche Grundlagen des Rechts und der Pol...

II. The Legislative Function. Part 3: A recent writer arrives at some remarkable conclusions based on natural law; e.g. that a foetus is owned by the mother and that the law has no control in the matter until it becomes a legal subject: P...

II. The Legislative Function. Part 4: That illusory ideas and programs scientifically untenable are able very frequently to produce results in the world which are, or at least appear to be, valuable in the light of finite wisdom has often...

II. The Legislative Function. Part 5: 29 As, for example, Boislel, Cours de droit naturel, Paris, 1870, pp. 28 seq., who allies himself with Rosmini, and with general ideas which go back to Plato. Cf Geny, Science et technique en droit...

II. The Legislative Function. Part 6: So much, at least, is conceivable without enlarging the horizon of the factors of knowledge. From the standpoint of society as we now know it, this program it must be acknowledged has an Utopian quali...

II. The Legislative Function. Part 7: 40 One leading thinker, of the neo-Hegelian School, has even claimed for law the superior mission of leading the way.-Kohler, Philosophy of Law (Albrecht's tr.). pp. 58 seq. What is the proper sc...

II. The Legislative Function. Part 8: 44 Perhaps the writer should here reassert that the use of language borrowed from physiology or biology has no other than a metaphorical meaning. The phenomena of society are sui generis, but the lack...

Introduction By H. N. Sheldon: An essential element of such a series as this, consisting of master-works on jurisprudence and the philosophy of law, is a consideration of Legal Method, the mode of treatment of the concrete legal pr...

Introduction By John W. Salmond: A large portion of the present volume is devoted to the discussion by divers authors of the question of what is termed free judicial decision or freie Rechtsfindung, - namely, the deliverance of t...

Introduction By John W. Salmond. Part 2: Why then should the inquiries of courts of justice be conducted on any different principle? In many modern statutes creating new jurisdictions it is expressly provided that evidence may be admitted wh...

Introduction By John W. Salmond. Part 3: The foregoing considerations are the justification for that progressive development and elaboration of the legal system which is the necessary result of the binding operation of judicial precedents. E...

Chapter I. Judicial Freedom Of Decision: Its Necessity And Method: By Francois Geny1 I. Its Basis Sec. 1. NEED FOR AND NATURE OF FREE LEGAL DECISION. - Sec. 2. GENERAL SCOPE OF FREE DECISION. - Sec. 3. OBJECTIVE FACTORS IN SCIENTIFIC INVESTIGATION; PUBLIC OPINI...

I. Its Basis. Sec. 1. Need For, And Nature Of, Free Legal Decision: The formal sources of positive private law (which I have tried to explain [in the preceding chapter]la according to their proper scope and their legitimate use), certainly furnish the best guide, in t...

Sec. 2. General Scope Of Free Decision: Even to-day there exists undoubtedly this double function of the judge: he is to contribute to the creation of law, and to develop further such law as has already been formulated. The legislator himse...

Sec. 3. Objective Factors In Scientific Investigation; Public Opinion: From the point we have now reached, so wide a field and such far-off horizons stretch out before us that we cannot possibly, in this cursory sketch, deal with all the detail; so I find myself constrai...

Sec. 4. Systematic Logic And The Technical Side Of Our Science; Concepts And Abstract Notions: Now let us first take a look at the last-named factor in our method. It is essential, for a proper understanding of the subject, to keep apart logic in the proper sense and legal technic. Logic in ...

Sec. 5. The Nature Of Things; The Idea Of Law As Means To An End: Thus we have at last come to inquire into the principal task of free decision on the basis of scientific research, which is the examination of the nature of things themselves. That is an idea which ma...

II. Practical Application Of The Principle Of Freedom Of Judicial Decision. Sec. 6. The Method Of Free Decision: The reader will perhaps wish to be told in a somewhat more direct fashion how the method of free legal decision, which is founded on such diverse scientific grounds, will work out in such a way as to ...

Sec. 7. The Liberal Use Of This Method: In order to shed light on the practical working of this method and to show its results, this would be the place for its application to a number of selected, concrete cases from which its actual workin...

Sec. 8. The Autonomy Of Individual Will Explained: In the domain of individual activity, seeking its own ends, the modern law performs its proper functions best by allowing full independence so long as such activities do not come into conflict with su...

Sec. 9. The Extent Of The Principle Of The Autonomy Of Individual Will: In relation to legal transactions, it is not enough to show the consequences growing out of the principle of the autonomy of the will. It is also necessary, and in fact that is the first task of the c...

Sec. 10. The Same Subject Continued: Now that we have come so far, I imagine that we cannot very well avoid touching upon a delicate question which has but recently been well formulated, and which we shall treat by a method freer from pr...

The Same Subject Continued. Continued: 6 Book 3, title 3, and section 1370, Civil Code. 7 Sections 1108 seq. Now we understand very well that a unilaterally expressed intention ought never to be enforceable except when it was seriously ...

Sec. 11. The Principle Of Equilibrium Of Interests: Finally, however, the problem of the limits which should be assigned to the principle of the autonomy of the will in the creation of individual rights, will be shown to be governed largely by a genera...

Sec. 12. The Same Subject Continued: In order to express my ideas fully on this subject, I should say I am convinced that greater and more certain progress will be made in the law by a frank method of investigation which will openly reco...

Sec. 13. The Principle Of The Superior Interest Of The Community: In whatever way, however, we allow the principle of the autonomy of individual wills to assert itself, whether it supplements or contradicts a rule established by authority, under no circumstances can...

Sec. 14. Other Applications Of The Method Of Free Decision: Thus the courts are led, without exceeding the well-known limits of private law, whenever they have no formal guidance furnished by statute or established custom, to search for light among the social ...

Chapter II. Judicial Freedom Of Decision: Its Principles And Objects: By Eugen Ehrlich1 I. Bureaucratic Law as Contrasted with People's Law Sec. 1. relations of legislator and judge . -Sec. 2. increased importance of statutory law. - Sec. 3. rules of decision insu...

I. Bureaucratic Law As Contrasted With People's Law. Sec. 1. Relations Of Legislator And Judge: Modern systematic legal science inclines to explain each rule of law principally by seeking to discover the intention of the legislator; but sufficient stress has never been laid on the fact that the ...

Sec. 2. Increased Importance Of Statutory Law: From the fact that modern judges are Government officials charged with the administration of the law, and from the conception of law as a command given by the Government to the judge, arises the super...

Sec. 3. Rules Of Decision Insufficient To Regulate Actual Life: No doubt it would be all wrong to assume (as the old school of Liberal politicians used to do) that law consists merely of rules of decision, and that the State has no business to organize society dir...

Sec. 4. The Importance Of Unwritten Law: But, even of rules of decision, the smallest part is the result of State action. Every sort of protection of rights by the State begins with enforcing the payment of compensatory damages, which in pri...

Sec. 5. Lawyers' Law: It is well enough to call such lawyers' law 3 customary law, as is done in the books; only, one should not forget that this expression covers several very different things. The lawyers' law of comme...

Sec. 6. Development Of International Law: We may now call attention to a similar course of development which perhaps is shaping itself before our very eyes. It is not entirely improbable that in the course of time a judicial power and a syste...

Sec. 7. Growth Of Law Without Legislation: For the same reason, the rules of decision already in existence are necessarily in a continuous state of change, simply on account of social evolution. This can be observed most clearly in the case of...

Sec. 8. Legislation Not A Primitive Form Of Law: The formulated law proceeding from the government is essentially different from the lawyers' law. The statutes, 4 To this group of individuals belonged not only the members of the family, but also ...

Sec. 9. The Courts And The Statutes: Evidently the relation of the judge toward the statutory law is quite different from his relation toward the lawyers' law. The statute gives him commands, the lawyers' law offers instruction. Lawyers'...

Sec. 10. Modern Codes: The turning of lawyers' law into written law found its consummation in the modern civil codes. Like the Corpus Juris, these are for the most part codifications of the lawyers' law, but statutory provi...

Sec. 11. Inadequacy Of Mere Statutory Law: This process, resulting finally in the practical elimination of customary law and the turning of lawyers' law into statutes, has given to the external form of modern law a rigid immobility which appar...

II. Statutory Law And Its Obstructions To Free Judicial Decision. Sec. 12. Advantages And Disadvantages Of Codification: The codification of the law actually in force becomes a necessity after the body of lawyers' law has increased beyond a certain point. Notwithstanding some undeniable drawbacks, such codification seem...

Sec. 13. Legal Technicalism: It is certain that one need not expect better or juster results from such technical decisions than from free ones. Generally speaking, it is undoubtedly much easier to decide a definite case correctly...

Sec. 14. Further Objections To The Technical Method: But how about the possibility of foreseeing what the decision of the court will be? In what cases is such foresight actually attained under the technical method? Apparently in those few cases only in ...

Sec. 15. Tendencies Opposed To Technicalism: And yet it is no compelling rule of law that has degraded the modern judge to his present position. It is true that the technical method of legal science dominates the application of the law; but like...

Sec. 16. Approximation To Free Decision: These admirable words describe exhaustively the task devolving upon the judge under the principle of freedom of decision. Notice the further statement that Such is in reality the practice even now. ...

III. Characteristics Of The Principle Of Free Judicial Decision. Sec. 17. Free Decision Not Arbitrary: A modern judge who assumes it to be his duty always to base his decisions on an express statute naturally will ask what is to serve as foundation for the administration of justice if that of a statute...

Sec. 18. The Basis Of Free Decision: No rule is just for all times. Every form of justice, like all formulated law, is the outcome of historical development. We have already pointed out that lawyers' law, the child of free decision, is c...

Sec. 19. Legal Growth As Affected By The Lawyers: Long ago von Bulow proved convincingly that all declaration of the law, even if it aims to be simply application of law, is by its very nature creative. Every species of legal science, consciously or ...

Sec. 20. The Personality Of The Judge: Thus the administration of justice has always contained a personal element. In all ages, social, political and cultural movements have necessarily exerted an influence upon it; but whether any individ...

IV. The Tasks Awaiting Freedom Of Judicial Decision. Sec. 21. The Work Of Legal Science: We may now cast a glance at the science of law, and consider what tasks will remain for it after technicalism has been supplanted by free decision'. First of all, it becomes plain that after this c...

Sec. 22. The Practical Operation Of The Law: Certain it is, first of all, that the primary task of legal science, to inquire into the meaning of legal rules, will retain its rank. Modern, civil codes require scientific interpretation more urgent...

Sec. 23. Legal Regulation And Actual Life: We must further inquire into the facts of daily life, apart from their legal aspect. We lawyers are always inclined to assume that our rule of decision is a faithful expression of how things are actua...

Sec. 24. Legal Science And The Courts: Yet there are still further problems of quite a different nature waiting for legal science to solve them. Whoever desires that we possess a body of creative decisions must of course desire also a crea...

Sec. 25. Development Of The Law Of Evidence: One of the most important tasks of this sort to which legal science must address itself in the future is the creation of an adequate law of evidence. In former centuries this matter was frequently tre...

Chapter III. Dialecticism And Technicality: The Need Of Sociological Method: By Johann Georg Gmelin1 I. On the Art of Administering Justice Sec. 1. CODES AND JUDICIAL FUNCTIONS. - Sec. 2. STATUTES AND JUSTICE. - Sec. 3. THE DEMAND FOR REFORM. - Sec. 4. THE WRITINGS OF ER...

I. On The Art Of Administering Justice. Sec. 1. Codes And Judicial Functions: When on January 1, 1900, throughout those parts of Germany where the Roman civil law had prevailed, the Roman law ceased to be in force, and the controversies raging around it disappeared together wit...

Sec. 2. Statutes And Justice: There may be an objection to this effect: we have no use for such doctrine. It means to put subjective feeling above law. Arbitrary judgment would rule in place of law, and that is precisely what a li...

Sec. 3. The Demand For Reforms: Because the members of the German judiciary cherish a tradition of great reverence for commentaries and collections of decisions, they have on the whole rested in the quiet belief that everything is i...

Sec. 4. The Writings Of Ernst Fuchs: This is, in a summary way, the general trend of those opinions which Ernst Fuchs, in various books and articles,11 has published and defended,not without encountering vehement contradiction and opposi...

Sec. 5. Criticism Of Supreme Court Decisions: As far as the outward form of decisions by the Imperial Supreme Court is concerned, the suggestion has often been made that long-winded periods and clumsy expressions ought to be avoided. Even recentl...

Sec. 6. More Decisions Criticized: In the field of private substantive law we may furnish the following illustrations : In another case,18 we find a decision that the Civil Code19 cannot be invoked in favor of the family, the father...

Sec. 7. A False Method: Enough of this!24 Let us ask: What profiteth, in such cases, an intimate acquaintance with all the commentaries, monographs, and annotations of the statutes? Are not these all very simple questions wh...

Sec. 8. The Better Method: With reference to the letter of the statute, the law also should be interpreted in the way in which, according to the Civil Code,28 private declarations are to be interpreted. Where we are dealing wit...

II. On The Sociological Method In The Administration Of Justice: What we are striving for is that the courts may find the right judgment on the merits by practical sense and true comprehension of the facts, instead of the correct logical deduction by the help of s...

Sec. 11. Mere Logical Deduction Not A Sufficient Method: We shall have to admit without qualification that in the past also consideration of the real merits of a cause and a balancing of material as well as legal interests has not been altogether neglected ...

Sec. 12. The Sociological Method: The very important question now presents itself whether the sociological method contains germs capable of such growth that a future scientific harvest may be expected therefrom. The new doctrine will ...

Sec. 13. Criticism Of Supreme Court Decisions: In subjecting the present state of theoretical doctrine and of the administration of justice in Germany to critical examination, one may very properly begin with the theory and proceed thence to the p...

Sec. 14. Analysis Of The Criticisms Made By Fuchs: First of all, Fuchs takes exception to the position taken by the Imperial Court regarding the doctrine of dom-mage moral in the districts formerly under the French Code Civil, a doctrine which, ac...

Sec. 15. Further Criticisms: In the next case,72 I should be inclined to agree that one should not carry the logical deduction from a concept so far as to arrive at the utterly unsatisfactory conclusion that the purchaser of a ho...

Sec. 16. A Difficult Case: The next case considered by Fuchs77 requires more detailed discussion in view of its difficulty. The facts were that a ten-year-old boy was employed as a laborer in a coal mine, contrary to the statut...

Sec. 17. Further Criticisms Analyzed: In a case where a party has refused an oath which as put comprised several distinct subject-matters,79 there must be some way by which the court above may remedy the oversight through which the oath w...

Sec. 18. The Subject Continued: It is shown91 how, by means of the constructive and dialectical method, actually two views diametrically opposed to each other may be proven. In this case a creditor accepted the substitution of t...

Sec. 19. The Supreme Court Sometimes Sociologically Correct: The character of the list of cases Fuchs criticizes adversely might create the impression that he is inspired with a hostile animus, and as a matter of fact that charge has been made against him. I be...

Sec. 20. Individual Errors Or False Method: I believe that this detailed reexamination of the cases commented on by Fuchs affords a sufficient basis from which to proceed toward the solution of this question: Is this simply a matter of indiv...

Sec. 21. The Prevailing Method Not Working Properly: For nothing is more certain than this: all the decisions we have referred to as substantially unjust are supported by undoubtedly acute legal arguments that cannot be gainsaid from the standpoint of f...

Sec. 22. The Sense Of Justice: Yet it is held pretty generally, at the present time, that the individual sense of justice is an inadmissible and unprofitable factor in the administration of law. Sense of justice is identified with ...

Sec. 23. The Theoretical Conception Of Judgment: Besides the formalism which would eliminate the sense of justice and simply subsume the matter to be considered under some statutory provision, another factor plays its part in exerting a considerable...

Sec. 24. The Balancing Of Interests: Here is where the balancing of interests by the judge comes to his aid. This is no imaginative thing but a substantial reality. For the things to be weighed, the material interests, exist and are easi...

Sec. 25. The Need Of A Change In Attitude: If the conception of judicial functions outlined above is in line with what Fuchs is aiming at, as I do not doubt that it is, although he may not yet have expressed it in this form, then I do not hesi...

Sec. 26. Objections To The New Method: Does not the new method, however, imperil most seriously the certainty of the law? That question I shall answer by the counter-question: Does such certainty exist at present? 122 We shall have to c...

Sec. 27. Some Objections Refuted: My own discussion of the decisions criticized in Fuchs's books has shown, no doubt to the great joy of adherents of the old school, that differences of opinion regarding particular cases are quite pos...

Sec. 28. Some Opinions Regarding The New Method: The task remains of surveying the reception hitherto accorded to the new ideas. In an ingeniously and cleverly written article recently published,128 Vierhaus attempts to describe the school of fre...

Sec. 29. Views Of Duringer: Duringer131 is of a very different opinion. He has no use for those who are imposed upon by phrases such as sociological administration of justice, or cryptosociological. Well, I surmise that Hede...

Sec. 30. Views Of Other Law Writers: Hellwig132 charges the prevailing manner of administering justice with inclining towards formalism and lack of freedom. He charges it with forgetting frequently that its business is not simply to dea...

Sec. 31. The Subject Continued: It is rather significant that the Deutsche Juristenzeitung, in its special edition on the occasion of the jubilee of the Leipzig University, deemed it worth while to devote in that number 135 not le...

Sec. 32. Conclusion: I believe I have succeeded in proving one thing: it is by no means true that the new school lacks the capacity for positive work. Of course a critical examination of the prevailing practice was necess...

Chapter IV. Equity And Law: Judicial Freedom Of Decision: By Geza Kiss1 Sec. 1. the function of the courts and the growth of law . -Sec. 2. history of legal hermeneutics: roman law. - Sec. 3. aequitas and logical exposition. - Sec. 4. history continue...

Sec. 2. History Of Legal Hermeneutics: Roman Law: In Roman law, the relation between jus and aequitas is expressed by the term interpretation We are accustomed to understand by the term 'interpretation' that function of the mind which attempts ...

Sec. 3. "Aequitas" And "Logical Exposition": Bynoneof its brilliant specific maxims has the Roman law acquired so strong a title to immortality as by the manner in which it has defined upon principle its own relation toward equity. These signi...

Sec. 4. History Continued: Later Roman Law: Unfortunately, the manner in which legal hermeneutics have developed in later times constitutes nothing better than a degeneration of this discovery of the Roman law. For the absolutism of the later...

Sec. 5. The Modern Problem: 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 que...

Sec. 6. The Problem Of Unprovided Cases: This manner of putting the question takes us back unavoidably to the concept of or aequitas. The equitable is an improvement of the law where that commits a mistake on account of its general for...

Sec. 7. Free Legal Decision: 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 droi...

Sec. 8. The True Method: The most important contributions toward this object were first offered by von Bulow.46 The significance of his position must be sought not only in the fact that he first attacked the dogma, uncontrove...

Sec. 9. Reasons For Gaps In The Statutes: The fact that statutes commonly fail to provide for some cases that will arise may be analyzed as follows: a. There are gaps in a narrow or technical sense when there is a lack of detailed, abstract r...

Chapter V. The Perils Of Emotionalism: Sentimental Administration of Justice: its Relation to Judicial Freedom of Decision By Fritz Berolzheimer1 Sec. 1. freedom of judicial decision in substance not a new idea. - Sec. 2. justice ...

Sec. 2. "Justice Based On The Adjustment Of Interests" An Untenable Theory: In the days of the Law of Nature theory, when people believed in a natural law over and above positive law, the judge decided according to this Law of Nature whenever he modified a positive rule. Cons...

Sec. 3. "Free Application Of Law" Equivalent To Decision Against The Established Rule: When is this free application by the court to take place ? The generally accepted opinion to-day inclines toward saying: The court may and should expound the law freely praeter legem, but to allo...

Sec. 4. "Liberty Of Judicial Decision" May Be Exercised Only In A Ccor Dance With Legal Principles: 1t is frequently argued that a judge deciding according to liberty of judicial decision is changing the established law, and consequently exercises a quasi-legislative function.16 15 Consequently...

Sec. 5. The Principles Of "Liberty Of Judicial Decision" Grow Out Of Historical And Economic Conditions: These fundamental ideas of justice, these legal principles, which the judge applies when he decides according to the method of liberty of judicial decision,-how may they be ascertained? In the sc...

Sec. 6. The Principle Of "Freedom Of Judicial Decision" Is The Idea Of Liberty, I: 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 legis...

Chapter VI. Judicial Interpretation Of Enacted Law: By Josef Kohler 1 Sec. 1. the reasons why interpretation is needed. -Sec. 2. legal interpretation distinguished from interpretation in general . -Sec. 3. how the true meaning is discovered. - Sec. ...

Sec. 2. Legal Interpretation Distinguished From Interpretation In General: To what has been said must be added another point: The legislator cannot make laws as a private person, but only in his capacity as legislator. 2 Lex nihil aliud est quam ipsa mens. See Barlolus,...

Sec. 3. How The True Meaning Is Discovered: The thought, then, contained in a statute may mean any thought that can be found in it, so that a statute may contain two, three, five, or any number of thoughts, any one of which may possibly be the ...

Sec. 4. Interpretation Changing With Social Circumstances: It follows from all this that the interpretation of a statute must by no means of necessity remain the same forever. To speak of an exclusively correct interpretation, one which would be the true mean...

Sec. 5. An Example Of Effective Interpretation: It appears, therefore, that in interpreting a statute one should first look to its reason, then to its logical consistency, and finally to the history of social movements. The following is an example....

Sec. 6. The Intention Of The Legislator: The method of interpretation formerly prevailing was nothing but one great error.5 It failed to recognize that every work of the intellect is the product of social forces, and also that the contents c...

Sec. 7. Broad And Narrow Interpretation: The principle expressed in the statute works within the words, as the motive power within the machine. Just as there are sometimes found inert parts of a machine, which are net in due proportion to th...

Sec. 8. Interpretation Of Unwritten Law: It is not only the written but also the customary law which requires interpretation; but the method is quite different in the latter. Here it becomes necessary to gather from the various rules of cust...

Chapter VII. Courts And Legislation: By Roscoe Pound1 Let me begin with a quotation: [There] is no doubt but that our law and the order thereof is over-confuse[d]. It is infinite and without order or end. There is no stable ground...

Courts And Legislation. Part 2: 4 Brown v. Leyds, 14 Cape Law Journal, 94; The Courts and the Legislature, 14 Cape Law Journal, 109; The Judicial Crisis in the Transvaal, 14 Law Quarterly Rev. 343. Cf. a similar case in Roumania...

Courts And Legislation. Part 3: As we know, the historical school overthrew the notion that there could be a complete and final legislative statement of the law. Unhappily the historical jurists went too far in the opposite directio...

Courts And Legislation. Part 4: 16 Endemann, Lehrbuch des burgerlichen Rechts, i, Sec. 5. See Crome, System des deutschen burgerlichen Rechts, i, Sec. Sec. 9, 11; Kohler, Lehrbuch des burgerlichen Rechts, i, Sec. 1. If judi...

Courts And Legislation. Part 5: 18 Prohibitions del Roy, 12 Rep. 63. While the lawyer believes that the principles of law are absolute, eternal, and of universal validity, and that law is found, not made, the people believe no ...

Courts And Legislation. Part 6: The fiction involved in calling the judicial process of finding the law by the name of interpretation leads to just such mischiefs. It gives rise to an aversion to straightforward change of any import...

Courts And Legislation. Part 7: Moreover, this very experiment was tried in the code of Frederick the Great and failed utterly as was to be expected. For why should we hope that the executive commission would possess more foresight ...

Chapter VIII. The Operation Of The Judicial Function In English Law: By Heinrich B. Gerland1 Sec. 1. RECENT PROPOSALS OF LAW REFORM. - Sec. 2. FREE LEGAL DECISION. - Sec. 3. ENGLISH COURTS AND LEGAL DEVELOPMENT - Sec. 4. POWER OF ADOPTING RULES OF PROCEDURE. - Sec. ...

Sec. 2. Free Legal Decision: I have already said that an attempt to give a historical survey of these varying tendencies would be very interesting. Especially with regard to the last of them, it would certainly appear that it is ...

Sec. 3. English Courts And Legal Development: It would be interesting to consider in detail the propositions briefly sketched above and especially to trace the parallelism existing between legal history and the general development of civilization...

Sec. 4. Power Of Adopting Rules Of Procedure: 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...

Sec. 5. The System Of Following Precedent: We now proceed to the second problem with which we are to occupy ourselves. That is the question of the manner in which the English courts are able to influence the legal development of their country ...

Sec. 6. Practical Effects Of The System: Advantages: In what has been said we have tried briefly to elucidate the principles governing the doctrine of precedents. Now we must inquire, from a critical and historical point of view, how this system of the ...

Sec. 7. Practical Effects:Drawbacks: Opposed, however, to these advantages of the system, which we may readily admit, there are grave objections, whereby in practice the whole system impresses one as extremely dangerous. I shall note the...

Sec. 8. Practical Effects Continued: Further Drawbacks: Now it may be supposed that his task of making law will inspire the judge with greater courage, strengthen 16 Comp., i.a., the account given by Birrell, Century of Law Reform, pp. 177-202. Birrel...

Sec. 9. Unmanageable State Of English Law: This leads us to another and undeniable defect, namely the unman-ageableness of English law, necessarily caused by the use of precedents. Who can possibly digest and know the enormous collections of d...

Sec. 10. Proposed Codification: It would seem as if nobody could seriously deny that the conditions here described in outline must have considerable and unfavorable effects upon the administration and development of the law. In addi...

Sec. 11. Free Legal Decision Not Practised: We have now observed the place of the courts in the development of English law. We have described and criticized especially the manner in which, by rendering their decisions, they at the same time cre...

Chapter IX. Codified Law And Case-Law: Their Part In Shaping The Policies Of Justice: By Edouard Lambert1 Sec. 1. theory that law is made stationary by codification: its effect. - Sec. 2. effect of the judicial decision the same in the anglo-american system. -Sec. 3. fallacy that cu...

Sec. 2. Effect Of The Judicial Precedent The Same In The Anglo-American System: This method, which isolates law from the social environment in which it was cradled, which treats it as something inert and dead, appeared in most European countries as a consequence of codification. ...

Sec. 3. Fallacy That Customary Law Is Without Conscious Policy: What is the cause of these similar results thus outlined? The common cause is found in two deep-rooted but fallacious beliefs. The beliefs, first, that the productive power of custom is extinguishe...

Sec. 4. Origin Of The Fallacy: The essential elements of this artificial notion regarding customary law came from two sources. In part they were furnished by the canon law.7 The Church's system, at the moment when its principal lin...

Sec. 5. Customary Law In The Anglo-American System: But is this Roman and canonical conception of custom acceptable? Ancient as is the tradition which established it, we need not hesitate to reject it. There is a very decisive reason for rejecting the ...

Sec. 6. Custom And Judicial Decisions In Anglo-American Law: The common law itself is in reality a product of judicial activity. To be convinced of this, we need only to read carefully Blackstone's pages on the common law, which have remained classic and have b...

Sec. 7. The True Function Of The Judge: Plainly we must ascribe this modified English doctrine to one of those rare traces of reaction from the canon law doctrine. Mention of divine law is proof enough. We rediscover here, between the lines...

Sec. 8. The English Doctrine Is A Fiction: But does that conception, which is almost universally accepted in populations exclusively or principally subject to customary law, and especially in England, conform to the reality? Does it faithfully...

The English Doctrine Is A Fiction. Continued: Far be it from us to smile at this fiction, whose childishness Maine so pitilessly uncovered. We find it again in many forms. It is justified and useful in every country where the mass of the populati...

Sec. 9. Fallacy Of The English Doctrine: The contradiction of ideas contained in the two views of custom under consideration is inherent in the very nature of customary law. In such a system of judicial law, as in a system of parliamentary l...

Sec. 10. Courts And Legislature As Organs Of Legal Production: During the long hours which I have devoted to the analysis and criticism of the strange tissue of fictions which we owe to the Greek and Latin rhetors and to the compilers of the Corpus Juris, the can...

Chapter X. Methods Of Juridical Thinking: By Karl Georg Wurzel Introduction Sec. 1. jurisprudence and other social sciences. I. Nature and Qualities of Juridical Thinking Sec. 2. POPULAR NOTIONS.-Sec. 3. POSTULATES OF JURISPRUDENC...

Foreword: This paper is not to be a philosophical work but a juridical one. In order to keep it such, notwithstanding the abstract character of its subject, I have tried to maintain the connection with the matt...

Introduction. Sec. 1. Jurisprudence And Other Social Sciences: Jurisprudence was the first of the social sciences to be born. Of all men, judges and legislators were the first that found themselves compelled to seek a clear and conscious knowledge of the principl...

I. Nature And Qualities Of Juridical Thinking. Sec. 2. Popular Notions: The declared purpose of legal study at a university is not to acquire a more or less extensive acquaintance with the law, but training in juridical thinking. No principle is valued so highly by lawyer...

Sec. 3. Postulates Of Jurisprudence: Jurisprudence does not claim general and accepted characteristics of its method, except in the case of the theory of interpretation. It does, however, insist on certain postulates or ideals, as is agr...

Sec. 4. Dispassionateness Of The Judge: Every emotion, whether of the kind psychologists call sthenic, or of the asthenic sort, implies a narrowing of the field of conscious action. It favors unreasoned, associative (i.e., determined by ext...

Sec. 5. Certainty Of The Law: 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 co...

II. The Current Theory Of Interpretation: Critical Examination Of Its Principal Tenets. Sec. 6. General Survey; The Principal Defect: In the science of private law, a doctrine has been evolved which comes nearest to being a theory of juridical thinking. That is the doctrine of interpretation, sometimes called legal hermeneutics. I w...

Sec. 7. Results Of Interpretation Classified In Accordance With The Prevalent Theory: The Romanizing doctrine of interpretation posits as its goal the ascertaining of the meaning (intention, contents, will, mens, sententia, etc.) of the legal rule. It lays particular stress on find...

Sec. 8. Criticism Of This Classification: The first demand to be made of a proposed scheme of subdivision is that it shall employ characteristics that may actually be recognized, so that the scheme is capable of being carried out. A mere ide...

Sec. 9. The Methods Of Interpretation Classified In A Ccord-Ance With The Prevalent Theory: The classification treated in the preceding sections is a subdivision of the accomplished results of juridical thinking, with an eye especially on the relation of text and sense. It is a classificatio...

Sec. 10. Reason ("Ratio") Of The Law: The reason or ratio of the law is the keystone of the theory of interpretation as elaborated for private law. The distinction drawn between two methods of interpretation and the differences between ...

Reason ("Ratio") Of The Law. Continued: 1. All law is positive, i.e. is based on the will of the legislator. Legal science inquires only into positive law. 2. There are cases unprovided by positive law, that is, by the will of the legisl...

Sec. 11. Need For A Theory Of Juridical Thinking: It reads like an expression of this general distrust and doubt when Pfaff and Hoffmann put at the head of their chapter on interpretation (which is exceedingly thorough and throws much brilliant light...

III. Scope Of Juridical Thinking, Especially Its Relation To Interpretation. Sec. 12. Its Limitation In Principle: Because rules of law, up to a certain point, are akin to the natural laws of sociological development,72 their study must be carried on in connection with the study of the natural laws governing human...

Sec. 13. Some Positive Observations Regarding The Scope Of Juridical Thinking: There is a class of courts which is relieved from the consideration of facts, to wit, the courts of third instance. For example, in a civil action in Austria the Supreme Court bases its decisions on t...

Sec. 14. A Logical Digression: We have already suggested that a number of errors in the prevalent opinions regarding the nature of juridical thinking may be explained by the habit of employing none but the methods of the old schola...

Sec. 15. Application Of The Above Principles To Legal Concepts92; Projection: If I were to try, on the basis of the above observations, to find the clearest description of a concept, to represent it graphically, I should compare it by no means to a geometrical figure. Rather, i...

Application Of The Above Principles To Legal Concepts92; Projection. Continued: It remains to inquire by what means the new phenomenon and the original concept may be cemented together. I shall but mention, in this place, that in every synthesis the connecting link may be either ...

Sec. 16. The Legislator: By formulating the concept projection it was my purpose not merely to furnish a new way of classifying the various forms of interpretation in the ordinary sense of the term, but to show the legitima...

The Legislator. Continued: But behold! This apparently self-evident conclusion, which some jurists seized upon with eagerness, met for the most part with nothing but sceptical distrust and open opposition. People reject and str...

IV. The Principal Methods Of Interpretation. Sec. 17. General Survey: The fact that the discovery of the legislative will does not always mean the will of a concrete person cannot but exert an influence on the shaping of the methods by which this discovery is sought. ...

Sec. 18. The Tendency Towards Unity: The systematic element in interpretation consists in the discovery of the meaning of a provision by comparing it with others of a similar character or referring to the same subject-matter. It presuppo...

Sec. 19. The Conservative Tendency: Undoubtedly, one may gather a plenty of new and realistic material for the understanding of the logical content and the true intention of a rule of law by the study of its history. By doing so he will...

V. The Subject-Matters Of Projection. Sec. 20. General Survey: Projection is not alone the discovery of the will of the legislator but comprises still more. The legal concepts are merely the points of convergence and starting, where new phenomena (phenomena of tr...

Sec. 21. Relation Between Juridical Thinking And Ethical Influences: Jurisprudence is primarily a normative or teleological science.125 The question jurists have to answer is not What is? but What ought to be? While in the explicative sciences the correctness of thinki...

Relation Between Juridical Thinking And Ethical Influences. Continued: 127 SeeJhering, Zweck im Recht; Wundt, Ethik, part i, ch. 3. 128 Gareis, Encyklopadie [vol. i of this Series], section 5, places the line between law and morals in this, that the former acts ...

Sec. 22. Relation Between Juridical Thinking And Economic Phenomena: The law stands in a peculiar relation to the phenomena of economic life. On their face, the latter are nothing but the inert, dependent subject-matter which the law rules and governs. The usual point ...

Relation Between Juridical Thinking And Economic Phenomena. Continued: 139 See Stubenrauch, Kommentar zu Sec. 1161; Civil Code Sec. 1313. 140 Edition of 1908. Kommentar zu Sec. 440. This section reads: Where the owner grants the same real property to two persons,...

Sec. 23. The Place Of The Subject-Matters Of Projection In The Classification Of The Entire Subject-Matter Of Juridical Thinking Into Facts And Rules: A few very simple truths145 compose the kernel of the observations made above. Juridical thinking, in so far as it is not simply the discovery of an actual intention, expressed in the rules of law, to...

The Place Of The Subject-Matters Of Projection In The Classification Of The Entire Subject-Matter Of Juridical Thinking Into Facts And Rules. Continued: 147 From Jhering, Jurisprudenz des taglichen Lebens, page 33. In some cases, for example that of the support of illegitimate children referred to in an earlier section,148 it will turn out quite ...

VI. Various Special Subjects. Sec. 24. The Analogy Of Particular Legal Rules: The reader who has followed me up to this point will very likely take for self-evident the conclusion I shall draw regarding a certain rule of interpretation which is about the only one so far establi...

Sec. 25. Proof Of So-Called Mental Facts, Especially The Intention Of Parties: In private law, the discovery of the intention of parties plays an almost overshadowing part. The will or intention a party has had, as well as other psychological facts required to find the proper de...

Proof Of So-Called Mental Facts, Especially The Intention Of Parties. Continued: Even where there is an actually established state of mind of some individual, juridical thinking may still have the function of separating the portion of this state of mind which is legally relevant f...

Sec. 26. "Safety-Valve Concepts: Projection does not proceed in the same manner in regard to all concepts, principles, and institutions of a system of law. We have already seen (in Sec. 15) that the reason for the vagueness of conc...

Sec. 27. Safety-Valve Concepts Continued: 1. Wrongful (culpa). This is a very broad concept pervading the whole field of private law. At every step we meet with it. Substantial success in a lawsuit almost always turns on questions arising o...

Safety-Valve Concepts Continued. Part 2: 176 That is why it was quite proper, in the German Civil Code, in defining negligence, to omit setting up the type of the prudent head of a household or any similar type, and instead to say very gen...

Safety-Valve Concepts Continued. Part 3: 3. Laws and lawyers are constantly dealing with the concept cause. Without entering on this subject in detail, I shall merely call attention to the well-known fact that by cause is not meant, in law...

VII. Conclusion. Sec. 28. The Prevalent Theory Of Interpretation As The Expression Of A Social Need: It would be easy to give to the remarks made in the foregoing chapters a wholly mistaken meaning. They might be taken for a feeble attempt to introduce into the theory and terminology of the administr...

Sec. 29. Legal Truth: Thus we have come to an additional peculiarity of juridical thinking It is bound to appear strictly logical in form, even where in the nature of things it cannot really be so. This is caused by a pers...

Sec. 30. Some Random Remarks On Bringing Jurisprudence Into Closer Relation With Other Social Sciences: This properly exhausts the subject of this study. I shall only add a few random observations. I am quite aware that the term social is very vague and indefinite, and that one really has not said ...

Some Random Remarks On Bringing Jurisprudence Into Closer Relation With Other Social Sciences. Continued: However, numerous sciences, all subsidiary to the science of sociology, are engaged in laying down the broad outlines of that future age when men will know better than at present the process of social...

Chapter XI . Methods For Scientific Codification: By Alexandre Alvarez1 Introduction I. Reforms in the Study of Private Law Sec. 2. DEFECTS IN THE PRESENT SYSTEM OF TEACHING: (1) DISTRIBUTION OF STUDIES; (2) FUNDAMENTAL STUDIES . -Sec. 3. TH...

Introduction. Sec. 1. Political And Legal Science Have An Undeniable Influence Upon The Destinies Of Nations: They train both the governing and governed classes. Does not the latter class, through the vote, necessarily participate in the conduct of a country's affairs? Does not its state of mind synthetically...

I. Reforms In The Study Of Private Law. Sec. 2. Defects In The Present System Of Teaching: A new era must begin in the teaching of private law. The legal education of future generations must differ from that of the past. Jurists, lawyers, and judges must be prepared to solve satisfactorily ...

Sec. 3. The Study Of The History Of Law: The history of institutions has long been neglected because the object of the study has been misunderstood and consequently its method too. No purpose, either scientific or practical, was assigned to ...

Sec. 4. The Study Of Positive Law: The purpose of this study, as we have said, should be to present, in their entirety and along broad lines, all the legal relationships which to-day are approached separately as isolated branches. Such...

Sec. 5. Interpretation Of Private Law: Judges and jurists have believed that, after codification, they did not possess the same powers of interpretation as before, under early French law or under Roman law. They believed that their only fu...

Sec. 6. The Study Of Comparative Law: The study of foreign institutions goes back to an early period. The philosophers of the 1700s devoted themselves to it, and Montesquieu gave it an important place in his work. Consequently public law,...

The Study Of Comparative Law. Continued: 23 Roguin, Traite de droit civil compare; Le mariage (Paris, 1904), Preface. 24 Tarde, Le Droit compare et la sociologie in Bulletin dela Societe de Legislation Comparee (1900), pp. 529-537...

Sec. 7. True Basis And Object Of Jurisprudence: Jurisprudence has as yet no settled foundation. This accounts for the discredit in which it lingers. So far it has had but a metaphysical substructure, called natural law or the philosophy of law. The...

II. The Future Of Codification. Sec. 8. Principles Underlying Future Codification: In what terms shall we state the problem of future codification, for the countries where codification has been adopted? In France, as indeed, in all countries of codification, it is commonly believ...

Principles Underlying Future Codification. Part 2: 42 Roguin, Observations sur la codification des lois civiles (Lausanne 1896), pp. 77-98. In a word, Roguin expressly proposes to imitate the Russian system.43 He borrows also from the system of t...

Principles Underlying Future Codification. Part 3: It does contain, however, a few express innovations. As to the sources of law, the German Code is silent upon the legal value of custom. This permits the German lawyer to infer that a general or imper...

Principles Underlying Future Codification. Part 4: 5:Legislative Powers of the Judiciary and of Certain Groups, (a) The reason for the separation of the executive and judicial powers was appreciated in the period following the Revolution. The principl...

Principles Underlying Future Codification. Part 5: 6: Codification by Institution rather than Subject. Another principle underlying codification which should be frankly condemned is the arrangement of the codes according to subjects, that is to say, t...

Sec. 9. Governing Ideas Of Future Codification: Those who would reform existing codes look only at the problem of the code's contents. Three groups of theories exist upon the subject, founded ordinarily upon economic and social considerations, susc...

Sec. 10. Origin Of The Changes In Underlying Principles And Governing Ideas: The underlying principles and governing ideas which we have advocated are not derived, let it be noted, from theories and speculations which are more or less metaphysical, but from an observation of t...

Sec. 11. Method Of Revision: The problem how to draft modern laws, especially the codes, has deeply interested legislators and statesmen. Theories and examples abound. Among the theories, we find several jurists in France prop...

Method Of Revision. Continued: The revision was then placed before the Bundesrat through the Imperial Chancellor. This body reported it to its Judiciary Committee, which was directed to examine it and modify it where necessary. The...

Chapter XII. The Legislative Technic Of Modern CIVIL Codes: By Francois Geny 1 Sec. 1. the need for legislative technic - Sec. 2. different kinds of legal technic defined. - Sec. 3. legislative technic in the narrow sense. - Sec. 4. the elements of legislat...

Sec. 2. Different Kinds Of Legal Technic Defined: The conception of legislative technic is dependent upon a more general concept, of which it is in reality nothing but a branch. That concept was carefully considered long ago by Savigny, studied more ...

Sec. 3. Legislative Technic In The Narrow Sense: The technic of legislation consists essentially of that group of mental processes by which the principal source of positive law among the moderns, to wit, written law, is made fit to serve its specifi...

Sec. 4. Elements Of Legislative Technic Classified: These various elements constituting legislative technic appear to be so numerous and diversified, even if we confine ourselves consciously to the internal and substantial side only, that one cannot ...

Sec. 5. The Technic Of Codification: Although these problems are rarely studied by themselves, yet the subject itself has not escaped the attention of thinkers who have devoted themselves to the art of legislation in general. It shoul...

Sec. 6. The Technic Of The Code Napoleon: The very first glance at the French Civil Code, which was finally adopted by the Law of the 30th Vent6se of the Year XII (March 21, 1801) will lead us to assert without hesitation that its draftsmen h...

Sec. 8. The Preliminary Drafts Of The French CIVIL Code: The idea of a Code that should mold into harmony and render uniform the civil law of France is met with in definite form from the very beginnings of the Revolution. In its session of July 5, 1790, the...

Sec. 9. Characteristics Of The French Code Of 1804: To give an account of these characteristics let us look at the work itself such as it came into being by the Act of the 30th Ventose, Year XII. First of all, I do not believe that, in spite of a fe...

Sec. 10. The Legislative Technic Of The Future: In accordance with the nature of this study, which is to be critical and practical at the same time, I shall now raise the question whether and in what respect we may improve, in view of the actual ne...

Sec. 11. The Need For A Consciously Thought-Out Technic: However, the consideration of this problem, with regard to the Civil Code of 1804 and the sort of technic which we have just analyzed, presents features of great delicacy. First of all, it may be q...

Sec. 12. The Technic Of The German CIVIL Code: The internal technic of the German Civil Code is not apparent from any positive provision in the text as it has finally 4 [The Swiss Civil Code of 1907 has been translated into English by Robert P....

Sec. 13. The New Swiss CIVIL Code: A very different sort of work, in this respect, is the new Swiss Civil Code, the draft of which was published in its final form by the message of the Federal Council on May 28, 1904. It is understo...

Sec. 14. Merits Of The Two Types Compared: May one assume, as some have argued, that this last type will be the form in which codes will be drawn in future? The mere fact that the Swiss drafts are the most recent would undoubtedly be insuffici...

Merits Of The Two Types Compared. Continued: In the absence of real practical experience, we may at least observe what the trend of opinion is among competent persons regarding the merits of the technical method followed on the one hand or on th...

Chapter XIII. Scientific Method In Legislative Drafting: By Ernst Freund1 Sec. 1. introduction. - Sec. 2. legislative practice as a constructive factor. - Sec. 3. increased executive participation in american legislation. - Sec. 4. defects of american le...

Sec. 2. Legislative Practice As A Constructive Factor: In European countries in which legislation is entirely uncontrolled by the courts, its quality is, generally speaking, higher than it is in America. This is undoubtedly the judgment of all who have ha...

Sec. 3. Increased Executive Participation In American Legislation: It is not uncommonly urged at the present time that executive officers be given a right to appear on the floor of the houses of the legislature and to participate in debate. It would not be a much mor...

Sec. 4. Defects Of American Legislative Procedure: The characteristic features of American legislative constitution and procedure are unfavorable to a high degree of workmanship. Each member has the right to introduce bills and makes use of it. The nu...

Sec. 5. English Private Bill Legislation: There is to my knowledge only one instance in which a parliamentary body has by itself produced a method of procedure having primary reference to the observance of principle and the maintenance of rig...

English Private Bill Legislation. Part 2: Perhaps the greatest hope for establishing constructive principles of legislation lies in the further development of plans that have already been tried, and of these, four deserve particular notice: (...

English Private Bill Legislation. Part 3: Existing agencies also demonstrate .that it is possible to provide expert drafting service for the more important measures and some assistance in the drafting of all bills introduced. The number of b...

English Private Bill Legislation. Part 4: Clearly, an experiment that has so much promise in it deserves every encouragement, and no effort should be spared to direct the movement into scientific lines. 4: Codification of Standing Clauses....

Sec. 7. Jurisprudence As A Constructive Factor: Scientific Work: There are principles of legislation too varying in their operation to be standardized by codification; that is true of the correlation of provisions, of the conservation of interests, of the protectio...

Sec. 8. Source Material: The materials for the study of principles of legislation are not as simple as those for the study of the common law. The statutes which are the primary source of the history of legislation, are uni...

The Modern Legal Philosophy Series: IX Science of Legal Method THE MODERN LEGAL PHILOSOPHY SERIES Edited by a Committee of the ASSOCIATION OF AMERICAN LAW SCHOOLS I. THE SCIENCE OF LAW. By KARL GAREIS of the University of Mu...

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