ENFORCEMENT OF LAW

elaborate inquiry into the pre-existing law and the history and development of the competing juristic theories among which the framers of the code had to choose. Their method of application of the law, however, is substantially the same as that of the literal school. While they see in a code provision, not the command of the sovereign, to be regarded in and of itself in applying it, but a development out of the juristic theory of the past, they agree that when it is inter preted and its content is ascertained, the process of application is a purely logical one. Do the facts come within or fail to come within the rule? Such, according to this school also, is the sole question for the judge. Ethical questions are for the legislator. When the judge has, by historical investi gation, found out what the rule is, he has simply to fit it to just and unjust alike. A third school, which one might call the equitable school, has sprung up and waxed strong in Germany in the last ten years.1 The starting-point of this school is philo sophical or sociological. To this school the essential thing is a reasonable and just solution of the individual controversy. It conceives of the legislative rule as a general guide to the judge, leading him toward the just result; but it insists that within wide limits he should be free to deal with the individual case so as to meet the demands of justice between the parties and accord with the reason and moral sense of ordinary men. It insists that application of law is not a purely mechanical process. It contends that the process involves, not logic merely, but discretion; that the cause is not to be fitted to the rule but the rule to the cause. "Whoever deals with juristic questions," says a contributor to this controversy, 1 See Ehrlich, Freie Rechtsfindung und freie Rechts wissenschaft, 1903, Stammler, Die Lehre von dem richtigen Rechte, 1902, Gnacus Flavius (Kantorowicz), Der Kampf um die Rechtswissenschaft, 1906, Briitt, Die Kunst der Rechtsanvvendung, 1907, Bozi, Die Weltanschauung der Jurisprudenz, 1967. A similar controversy has been raised in France, Lambert, La fonction de droit civil compare, 1903.

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"must always at the same time be a bit legislator "l that is, to a certain extent he must make law for the case in hand. This theory and the school that contends for it are modern developments, under the influ ence of sociological thought, of the perennial notion of natural law, fruitful in so manyepochs of legal history-. It has always been the function of this notion to preserve or restore juristic ideals of reason and justice in times of matured or stable or rigid law. Although we do not acknowledge it, we have the same problem in American law. Valuable as the historical method is in order to understand how a rule came into being and to judge how far it is now applicable, when the codifier or the legislator is at work, it may be doubted whether it has value for the immediate administration of justice. Whatever the original reason for rules, they are in force today for reasons of today, even if those reasons come to no more than vis inertias. For the legislator it is all-impor tant not to be deceived by specious modern "reasons " for ancient rules. But for the judge, who has to apply the rules, there is a great deal to be said for such ex post facto reasons. They fix his mind upon the vital point that the rule is applying here and now to men of this day. Hence we may leave the historical school out of account for the purpose in hand. Between the other two schools the line is as sharp and the conflict as acute under the surface with us as it is openly in Germany. The theory of our legal system is that the court finds the law in statute or in adjudicated cases and applies it hard and fast to the facts of the case in hand. Many courts carry out this theory conscientiously in practice. But to a large and apparently growing, extent the practice of our application of the law is, after all, that jurors or courts, as the case may be, take the rules of law as a general guide, determine what the equities of the 1 Zitelmann, Die Gefahren des BGB. filr die Rechtswissenschaft, 19. This is taken for a motto by Briitt, Die Kunst der Rechtsanwendung.