New statutes must at times be passed in code countries when new law has become necessary; and even so in case-law jurisdictions the law must be renewed through judicial declarations of what law is (Rechtssprechung). But whence does the judge derive the substance of his new legal rule? Does he somewhere "discover" legal rules? Does he derive them from a law of nature that originated with and as a biological function of mankind, considered as a zoological species, and which-as such functioncontinues to develop with men? Or is a power granted to the judiciary independently to create legal commandments and legal norms? Is a judge a legislator if he decides by the law (rechtlich entscheidet) an individual case? Does hist will to decide thus-and-so (Entscheidungswille) work beyond that case, no longer merely as a freedom to render a judgment (Urteilswille), but as a will to prescribe future law?

It is unnecessary to answer these many questions. Their mere statement suffices to indicate the profound difference between the continental European and the Anglo-American judge. The

former's decision-as we have made manifest by the provision of the Code Napoléon cited at the beginning of this article-is forbidden to assume authority (which would encroach upon the legislator's appointed province) prospectively to regulate legal relations not yet even in existence. The continental European judge is bound to "find" the law implicit in the statutes, never to invent a law theretofore nonexistent. His judgments are accordingly in the logical sense of the word "Erkenntnisse"; a taking cognizance, through sound understanding and construction, of the legal order that lies outside of all adjudications. They are an echo of the statutory will; not declarations of the judge's own legal will. In short an application, not a creation, of law.

What has thus far been said of the relation of the judiciary to legislation was true of continental Europe, as also of the civilized countries of Asia and South America, down to very recent times: in theory it is still true to-day.

But here, too, the World War has showed its effects. Not that it set aside the principles stated; but it created conditions that temporarily compelled the courts to forsake prescribed and traditional paths and to seek new ones. Already during the war phenomena appeared with which the written law had not reckoned, which it had not foreseen. The almost complete stoppage of barter and money transactions with foreign countries, and the many prohibitions thereof; the adoption by the Entente powers-even by those formerly following antithetical principles of the treatment of alien enemies traditional under the Anglo-American common law, and the retorsion thereby provoked; further, the effects of the blockade, especially the disappearance of goods, wares, and merchandise; fluctuations in monetary standards; and after the war changes in territorial boundaries and areas-all these things in places annihilated the thousand-folded net of legal relations woven by society, and in other places pulled it into distorted patterns that jarringly contradicted earlier legal concepts. and the purposes of contracting parties. Contracts could not be performed, because the goods to be delivered were not available at home nor procurable from abroad, because their delivery or their transportation was forbidden by statute, or made practically impossible by traffic congestion, by insecurity against theft, or by excessive charges.

More influential than all other causes was the collapse of money values. One need only refer to the successive catastrophic depreciations of paper money that occurred, first with extraordinary violence in Austria, then in Poland, Germany, Hungary; but which also in victorious countries-Italy, France, Belgium-brought the paper money down to a fraction of its appropriate gold value under statutory standards. All contracts that called for the exchange of money for goods, for delivery of things or performance of services, were shaken to their uttermost economic foundations when the monetary payment specified was no longer, as once intended, of equal value with the thing to be exchanged or the

And

work to be performed therefor. their divergence entered even into purely financial transactions. He who loaned good money would not accept the return of the same sum in bad money; he who sold something would not be put off with a selling price shrunk before payment to a tiny part of its original value.

On every hand the same question arose, though with the most varied applications: Which party bears the risk and the loss from depreciation of the currency? Countless actions were brought; for one party to every contract -sometimes both-fought for economic existence. As has been stated, existing statutes were of no aid; and it was with tardiness far too great, and only imperfectly in but very few fields of the law, that new legislation undertook to regulate these disjointed legal relations. The courts, compelled in their administration of justice to find immediate solutions, were forced to intervene. The shackles fastened upon them by the monition never themselves to set up legal norms in applying the law deduced from the statutes, they were compelled to shatter in order to remedy the sufferings of the time; in order that its novel conditions might be regulated by their judgments with more fidelity to economic facts, with more general utility, with greater justice than would have been possible through statutes conceived in the past upon the basis of totally different postulates and world conditions. Hence the decisions then rendered were of special importance. The first judgments of this kind afforded models and justification for those following, and thus in this field. (of commercial law) there really did come to exist a sort of judicial law.

Yet this was only temporary. Legislation began to attack the problem-in Germany and Hungary through regulations regarding the readjustment (Aufwertung) of claims; in Austria, with less resoluteness, through special statutes such as the Familiengläubigergesetz (family creditors' law). Aid was afforded in Austria for a transitional period by providing special machinery for administering justice in tribunals to promote voluntary compromises (Einigungsäm

ter, compromise tribunals). These were manned with laymen of the same trade or profession as the two disputants, under the chairmanship of a professional judge. Their competency extended to disputes over "deliveries" under contracts made during and following the war to the end of 1921—relating in particular to deliveries of goods, the grubbing of woodland (Holzabstockung), the rehabilitation of industrial plants (Werkherstellung), and to life insurance policies in terms of gold or foreign exchange, and relating similarly to compromises entered into down through 1917 for deliveries, at prices then fixed, after the war.

These compromise tribunals, set up in five cities, were bound to consult with the parties and then make them a compromise proposal. If this was accepted it was equivalent to a judgment, and was capable of execution. If both parties did not accept it they could still appeal to the Einigungsamt in a new character, viz. as an arbitration court (Schiedsgericht), which often happened. The statute expressly authorized the Einigungsamt to decree by its arbitral award, in accordance with equity (Billigkeit), either specific performance of a contract, total or partial rescission thereof, or the payment of damages. Thus the judges in these courts were relieved from a strict application of the statutory law, because this was unsuitable for a sound, a just, an economically practical regulation of the totally novel relations of fact which extraordinary circumstances had brought about.

However, this system of untrammeled judicial judgments came to an end with the 31st of December, 1923. On that date the jurisdiction of the compromise tribunals ceased, and the ordinary courts resumed their former jurisdiction. The old relation again exists between legislation, as the sole authority empowered to create abstract norms applicable to future factual relationships, and the judicial administration of justice as an application of those norms in conformity to

statute.

As for generations past statutory law alone will rule in future on the European

continent. New phenomena in economic relations, in business transactions, and in social life will be dealt with by the courts simply by subjecting them to existing statutes; that is, by interpreting theseif necessary, by fully exhausting the juristic possibilities contained in their words within the sense and the spirit of the lex lata. There will be no regulation of these new factual relationships by the judge who first takes cognizance thereof, through a legal rule newly brought into the world by him. If it appears from the resulting body of decisions that new law is needed, legislation will intervene and give aid through special statutes: a procedure of every-day occurrence in Austria as in Germany, and also in other European states.

Thus the judgments of the courts-the appellate Judikata, and the collections of judicial decisions-are reinstated in their respective rôles already described. They will make permanent the interpretation of the statutes by the highest courts; will give this fixity through a constant and unifying point of view; will increase the law's certainty and lessen litigation by making evident in advance from the established doctrine (Spruchpraxis) of the Supreme Court either the hopelessness of, or the probability of success through, appeals. For judges of first and second instance they will serve as a source of instruction, and for practitioners as a practical indicator of the probable result of litigation. The decisions of the courts still serve two functions. They are, as already mentioned, the most important guide for the law-giver to gaps, imperfections, and inconsistencies in the statutes, revealing the direction in which altered circumstances demand legislation. For the theoretical study and the scientific cultivation of the law they are likewise of great value, for they provide juristic science its most important means of observation and experience, furnishing the jurist with life-like pictures of the working and the fruits of the actual legal system.

In the sense thus explained judicial decisions are esteemed in the countries of continental Europe. Not as the "finding place" (Fundort) of the positive law; not

as a source, recognized by the state constitution, from which new law may flow; but only as instructive for a sound understanding and just application of the statutes. These are purposes sufficiently high and important to explain why men collect and study the courts' decisions and utilize them as significant guide posts in the 'application of a code.

Continental countries and jurists will never bring themselves to abandon the exclusive authority of statutory law, and concede to a judicial decision the force of a legal rule binding in similar cases thereafter arising. One must, indeed, concede that no statute succeeds in including within its abstract norms all cases that arise. But here theoretical jurisprudence and the judicial administration of the law do their work. They decide specific cases by the law's fundamental conceptions. In the first place by bringing them within a definite statute or code provision; secondly, if no solution be so found, by uniting the controlling purposes and principles of the whole legal order (Verbindung der Zweckgedanken and Principien der Gesamtrechtsordnung), and then by deciding in accord with the spirit of the statutes and the motives of the law. The decision is made, in the end, because it must be made; because the judge cannot, like the Roman judex privatus, decline judgment with the excuse "non liquet." Hence it is the prevailing doctrine of continental jurists that a statute may have gaps, but not the law. Either from the code, designed to be without gap and all controlling, or from the legal order as a whole, juristic science and judicial decision have always discovered a legal rule concealed in each seemingly doubtful set of facts, though possibly one of first impression.

Continental Europe will abide by the principle of exclusive statutory law. However highly the value of judicial decisions might be estimated for the purposes heretofore explained, there would never be any thought of returning to a system of judicial law. Nor will a democracy that has grown powerful ever again consent to have its exclusive power of creating law legislatively taken away

to the profit of the judiciary. By its nature all law proceeds from the people: the judge is no legislator, not even though he should have received his office by election-and to that European continental countries will most probably for good reason always remain opposed. The separation of governmental powers, the distinction between legislator and judge, impresses us European jurists as a permanent and self-explanatory condition. Notwithstanding this firmly rooted view, the Anglo-American system of case law attracts in this country the greatest interest, precisely because it affords us an entirely novel picture of the development of legal rules.

The fundamental question which we put to ourselves in this connection is. this: Whence is the law taken by the judges whose decisions are regarded by case-books, text-books, encyclopedias of law, and other judges of Anglo-American courts as the ultimate source of the general and special rules of the law of to-day? Who issued the law's command? Did no legal relation already exist between the litigating parties when they entered into a business relation, when they made their agreement, when one did damage to the interests of the other? Was a jural relation first created by the judge's decree? How can that be? If not already law, did it only become a legal rule as an opinion was gradually formed by the judge that the contention of one party was the juster? And was the jural relation created thus by the judge, and not by effect of the relation of fact in which the parties stood? Continental jurists have passed through twenty centuries of legal experience and science; long since they attained the stage, in legal evolution, of an exclusively statutory law, the only stage accordant with our democratic constitutions; and never again will they renounce the written law of the statute and return to judge-made case law.

Nevertheless, European legal science has received the most valuable stimulus from its temporary experience with case. law, and from its increased study of the working arrangements of the American case-law system. Nor are we Europeans

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less interested in the instructional method connected of necessity therewith, as it has been developed (particularly) in American law schools, and notably the Harvard Law Law School-through the "Langdell method," there originated, of casuistic legal instruction. Alike in Germany and in Austria both the study and the analytical exposition of the law increasingly concern themselves with the law that is living in the practical acts of men; the law that is actually practiced (or as it were "received") by men. It is not abstract legal principles; it is above all factual relations, the events and conditions wherein originate rights, to which the greatest attention is directed. has happened with criminal law and criminal procedure-with an Austrian, Hans Gross, here in advance of all others; it is now happening in all fields of the private law. For the study of this there has been established (by the present writer with others) a much imitated "Universitätsinstitut" of applied law, to enable jurists to gain an insight into the practical arrangements of business life and the administration of justice, and to lay before them instructive cases chosen from judicial decisions. The collections of judicial decisions are also valued more and more highly, because they afford pictures of the legal conditions actually prevailing among men. They are prized, not indeed as a source of law, but this, yes-for the understanding of the statutory law.

Europe will not forswear its achievement of a written statutory law, and an undivided authority of that statutory law, to return to a condition of uncertainty in legal rules which in historical fact it has overcome. One may indeed answer: "The text of your statutes lies black on white before the eye, but the substantive principles to be discovered therefrom is often uncertain, for your courts and your jurists are inconsistent, and variantly interpret the same statute." True enough; that is unavoidable, for the verbal expression of the statutory rule, be it ever so clearly conceived and a single meaning intended, does not always accord with the draftsman's enactive intent. And even were this oth

erwise, the legal rule expressed receives an uncertain and unlike interpretation by those who read it; they read out of it a variant content-but only in the smallest minority of cases requiring its application. Speaking generally, the code already controls the friendly arrangements of business affairs, and of everyday life in its contacts with the law. And it is often even unconsciously applied; for the rules of the civil, commercial, and criminal law belong to the common knowledge of the people and are gradually as a matter of course becoming a part of the training of every person active in business or public life.

This, then, is the decisive point regarding the whole contrast, the great contrast, between judicial or case law and statute or codified law: written codes are not accessible to jurists alone, nor even primarily intended for them, but for everybody; on the other hand, a library of case reports, text-books, commentaries, or encyclopedias is for lawyers only. The content of the great Eu

ropean codes penetrates among the people. The statutes are so drafted that even the layman, the ordinary citizen, can understand them. Legal history affords us sufficient examples of this. The latest and the most brilliant is the Swiss Civil Code, which has already becomeas the Code Napoléon and the Austrian Civil Code were once-a national treasure; a book written for the people, influential among the people, understood by the people. Law is no esoteric science that must be discovered through learned work from thousands of precedents, from judicial decisions in litigated. cases from cases which after all are not quite like the one now to be decided, and which perhaps come down from times in which there prevailed arrangements of life, and therefore a legal order, that contradict those of to-day. What judicial or case-law cannot be, that codified law is; a people's law, no jurists' law of a learned class, but an intellectual possession of all citizens, as befits our democratic age.

OR some years now, it has been the

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current fashion to blame everything that goes wrong on the war. Most of us find it a simple and convenient thing to have a scapegoat ready at hand when difficulties arise. "C'est la guerre" has served us, not only as a substitute for explanation, but also as a barrier to inquiry and investigation.

But as 1914 recedes into history, many of the general assumptions of the good old war days begin to be challenged, and we are presse more and more with demands for fuller answers than we gave

to many questions during the heyday of nationalistic enthusiasm. The peoples in countries which were opposed in the war no longer regard each other with such deep suspicion, and even the causes of the war itself now seem more difficult to unravel than we had once regarded them. With the restoration of perspective and calmer judgment, with a greater willingness to see the common interests of all peoples, instead of the antagonisms of a few, we are coming into a position where many of the major postulates of our international polity may be re-examined