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Introduction 72
V. Closing Considerations 91
Preface
This writing is based upon two public lectures: the speech which was
given March 6 of this year on the birthday of his majesty, King Karl of
Wiirttemberg, by me, at that time rector of the University of Tiibingen,
(1864) is introduced.
That fundamental idea gradually became more established and was
more fully developed. Therefore, I could proceed in a speech in 1875
before a scientific society in Tiibingen about the unavoidable deviations
legislative work, is urgently stressed the insufficiency and the need for
supplementation of statutory rules.
Hereafter, I may indulge in the hope that the present attempt to
develop and completely establish a theory of judicial law-creation, far sur-
passing the earlier suggestions, will lie not too far away from that which
42. This refers to the rise of the "historical school" of jurisprudence led by Friedrich Carl
von Savigny. See W. Friedmann, Legal Theory 209-223 (5th ed. 1967).
1995 STATUTORY LAW & THE JUDICIAL FUNCfION 75
required to create it, constitutes the peculiarity, the essence, of the judicial
decision. By this means, it is brought into close relationship to statute but
dissociated from the usual private thinking processes with which our lin-
guistic usage lets it carry a common name that is not very fitting for it. It
is also especially dissociated from the nonjudicial evaluation of the law
44. The trial by ordeal common in western Europe in the middle ages included such
methods as the red-hot poker and submersion in water. It was thought that God would make
a supernatural intervention through these devices and thereby make the "judgment." Thus, a
legal judgment was not a rational act by human beings. See R. Bartlett, Trial by Fire and
Water (1986).
78 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXIX
upon the designation "Urteil," which was originally very remote from it.
In the use of the other word for the legal decision, which lies in a
similar direction of thought, namely the word "Erkenntnis," the German
language has used its gift for sensitive distinction so much more securely
since it discriminates carefully between the private, non-legally-binding
fit to stir doubts about the foundations of the legal order and the judiciary?
Is it not true that what the judge on his own and independently has to do
for the state and the law is exclusively to establish whether the facts
brought before him are true, sufficient, and the same as those with which
the statute has fixed the legal consequences prescribed by him? Is, howev-
45. Biilow was familiar with Roman and Continental legal history which had important
phases of judicial lawmaking. He seems not to have been familiar with the Anglo-American
common law whose history would have supported his argument as well or better than the
Roman and Continental examples.
46. This sentence is an interesting parallel to Holmes' statement in The Common Law
(1881) that, "The life of the law has not been logic, but experience." See also the earlier
statement of Rudolf von Jhering, "Das Leben ist nicht der Begriffe, sondem die Begriffe
sind des Lebens wegen da. Nicht was die Logik, sondem was das Leben, der Verkehr, das
Rechtsgefiihl postuliert, hat zu geschehen, mage es logisch deduzierbar oder unmoglich seine
[Life is not from conceptions, but conceptions are there because of life. Not what logic pos-
tulates, but what life, intercourse, the sense of justice demand, has to happen, whether it is
logically deducible or impossible.] R. Jhering, 4 Geist des romischen Rechts 321 (8th ed.
1891) (original published 1852-65).
82 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXIX
break off some pieces and to add new ones. And when the need for deep
changes of the law became apparent, these also were not, for the most
part, accomplished by statute, but were left up to the law-transforming
work of the courts, at least as far as the inner, particularly private legal
circumstances are concerned.
47. For discussion of Roman legal development, see P. Thomas, Introduction to Roman
Law (1986) (hereinafter cited as "THOMAS"); H. Jolowicz, Historical Introduction to the
Study ofRoman Law (2nd ed. 1952).
1995 STATUTORY LAW & rns JUDICIAL FUNCfION 83
48. Justinian's Code was promulgated in 533 A.D. after a drafting period of several years
in which the drafters sought to utilize the best of the earlier legal scholars. See THOMAS, at
14-17 (1986).
49. Justinian's Code was rediscovered in the eleventh century and was taught in one form
or another at the newly formed universities from that time down to the present. See C.
Radding, The Origins ofMedieval Jurisprudence (1988).
50. For discussion of medieval Germanic law, see J. Wigmore, ed., General Survey of
Continental Legal History 9-89 (1912). See also H. Berman, Law and Revolution 49-84
(1983) (hereinafter cited as "BERMAN").
84 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXIX
And the judge did not even have to decide himself. The law was
"found" by the court assembly, the community, by lay judges, and juries.
It was "asked" of them by the judge and his officials from case to case.
It was a "people-questioning law," free of the proscription of state
legislation.u
51. For description of the handling of cases by folk courts in the middle ages, see
BERMAN, supra note 50, at 58-60.
52. The study of Germanic law was revived in the nineteenth century in Germany. See
REIMANN, supra note 140.
1995 STATUTORY LAW & THE JUDICIAL FUNCTION 85
53. For discussion of the causes of the "reception" of Roman law in Europe, see A.
Watson, The Evolution ofLaw 66-97 (1985).
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other newly discovered legal source, the customary law, had to serve as
the means of creation. In order to satisfy this prejudice, one was willing to
believe that a transformation of the law that contained the steepest break
with legal tradition, the renunciation of all law one was used to, was the
consequence of customary law!
But, our adversaries will interject, after the courts have subjected
themselves to the reign of the statute, and after the modern state has
entirely learned to exercise its legislative tasks better, more independent-
ly, and more completely, is not now the position of the judiciary so com-
pletely changed that nothing remains of its former law creating mission?
At least is not the judge reduced to the more modest task of merely logi-
cally subsuming the law?
It has to be plainly conceded that the original complete legal free-
dom of creating the law judicially has disappeared and will probably be
gone for all foreseeable time.
The more decisively, sensibly, and carefully the legislature seeks to
complete its task of ordering the law, the narrower have been the path-
ways for the judge when decreeing his legal rulings. Consequently, the
legal order is more protected against individual judicial arbitrariness and
desire for innovation in the law, more protected against insecurity and
confusion. That is exactly the blessing which the statutory legal order
(that was won while sacrificing the domestic law) brought us. This bless-
ing is yet further enhanced since legislation now shows the only possible
decision in advance for an infinitely huge number of cases. Thus, litiga-
tion is cut off in advance, and, at least in civil cases, the need for a judicial
determination of the law does not arise.
But through this and because of it, the task for the judiciary itself to
find and create the law is only limited, not eliminated. Within the limits of
the statutes, there is still plenty of room for the judge to determine the law
independently. This is a much ampler and freer leeway than someone may
suspect who is not close to the inner workings of court life. Unless the
freedom of judicial legal movement becomes suddenly clear to him when
he himself gets involved in a lawsuit, he may find the rights that he was
granted by one court were later taken away from him by a higher court for
1995 STATUTORY LAW & mE JUDICIAL FUNCfION 87
absolutely contrary legal reasons. This could even be based upon the same
sections of the Code on which the judgment of the lower court was based.
Thus, he may feel the brisk inclination to join those who want to affix to
the law besides sword and scales also a third, a waxen symbol.
Even the most complete legislation is as yet unable to complete the
legal reasons. It can be seen with the greatest clarity when the legal evalu-
ation of the findings of fact undergo changes by the judge from one court
to the next. Each of these innumerable cases is a characteristic legal prob-
lem for which the appropriate legal rule is not yet ready at hand in the
statutes, and, as experience has shown so painfully, also cannot be
case, pick them out, and determine them with binding force. In these
numerous dispositive legal rules, the characteristic task of the judge to
determine the law is recognized most openly and is called upon loudly for
help by the legislature itself.
Next to this, however, there are numerous absolute, binding legal
thoughts can be found in our Roman-law treatises and lectures with the
assurance that they restore that which is already in Justinian's Code. The
judges who judge according to these rules are convinced and have to be
convinced that they decide according to Justinian's law. And yet, who
would want to believe that Justinian and his assistants already had all this
v. Closing Considerations
It has been shown how the alleged completeness, determinacy, solid-
ity, and infallibity of the statutory law is managed. Everywhere, the legal-
ordering power of the legislature strikes insurmountable barriers. In order
to achieve its task, it depends constantly on the collaboration of the judi-
ciary in order to fulfill the work of ordering the law. Statute and judicial
office share the authoritative state task of creating and determining the
law.
The fact that our science has still not wanted to acknowledge this
truth can only be explained through a deeply rooted prejudice which the
legal theory of our times has taken over and adhered to from the times of
the most exaggerated statutory cults.
It is true that at the beginning of our century under the leadership of
92 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXIX
Savigny, the fight against the belief in the omnipotent power of legislation
was taken up enthusiastically and carried out victoriously. With the irre-
buttable proof that legislation is not the single dominant kind of legal con-
struction, the historical school inaugurated its great successes. But despite
all this animosity toward the traditional theory of legislation, we remained
And so, it can also be explained why our legal theory could remain
so little receptive to the appreciation of that nonstatutory law which still
developed constantly in the midst of all the statutory law with vigorous,
inexhaustible power. Today's judicial law was not willing to fit under the
scheme of any abstract legal order, nor even to find a shelter in the amply