404
THE GREEN BAG
juristic speculation, carried on by counsel and judges, and the period is fairly com parable to the classical period of Roman law, or the development of equity or rise of the law merchant in England, or the rise of the natural-law theory on the Continent in the eighteenth century, or the working out of the Pandektcnrecht in Germany in the nineteenth century. In all such periods of growth questions of application of the law are dormant. There is no occasion to ask them. Legal rules are flexible and their limits have to be determined as causes arise. Hence they adjust themselves readily to concrete controversies. But every such period of growth has been followed by a period of stability, in which the growingpoint is in legislation. The jurist-made or judge-made rule has become fixed and rigid. New rules are formulated by the legislator, are imperative in form and are hard and fast. Such rules do not adjust themselves to concrete controversies, but require a conscious judicial adjustment in the course of which something of the certainty of the rule or something of the equities of the cause in hand, or possibly of both, must be filed away. In these periods questions of appli cation of law have always been debated. After Germany, under the influence of the historical school, had held out for her com mon law for nearly one hundred years, a period of enacted law has brought on a con troversy among German jurists that is very instructive for us in America. Three schools may be distinguished in Germany today, dif ferentiated according to the manner in which they apply code provisions and the point of view from which they approach the code. First, there is what we may call the literal school. The adherents of this school ask, What do the several code provisions mean as they stand, applying the canons of genuine interpretation? They endeavor to find the proper code-pigeonhole for each concrete cause, to put the cause in hand into it by a pure logical process, and to formulate the result in a judgment. Their standpoint is
essentially analytical; and it is significant that analytical theories of jurisprudence and analytical methods of legal science have arisen in Germany only within the last thirty years with the growth and develop ment of legislation under the Empire. For the analytical theory has always been a concomitant of periods of legislation.1 A recent German controversial writer has described the point of view of this school thus: "A superior magistrate with academic training, sits in his cell armed only with a thinking-machine, although one of the finest type. His sole furniture is a green table upon which there lies before him the official statute-book. One may hand him any case you please, actual or moot, and, performing his duty, he is prepared by the aid of pure logical operations and a secret technique intelligible only to himself, to indicate with absolute exactness the decision .already determined by the law-maker in the statutebook."2 In other words, the whole human element is excluded. The process and the result are conceived of as something purely logical and scientific. If the result chances to be just, so much the better. But justice in the cause in hand is not the chief end. The facts of concrete causes are to be thrown into the judicial sausage-mill and are to be ground into uniformity; and the resulting sausage is to be labeled justice. Absolute uniformity of decision of cases logically alike and entire certainty in advance as to the outcome on any given state of facts are the ends it seeks. Secondly, there is an historical school. With the adherents of this school the code provisions are assumed to be in the main declarator},' of the law as it previously existed; the code is regarded as a continua tion and development of pre-existing law. With them, all exposition of the code and of any provision thereof must begin by an 1 See my pamphlet "A New School of Jurists." (1904.)
- Gnieus Flavius (Hermahn Kantorowicz), Der Kampf
um die Rechtswissenschaft, 7.
