Gesetz Und Richteramt

Gesetz und Richteramt: Statutory Law and the Judicial Function
Author(s): James E. Herget, Ingrid Wade and Oskar Bülow

Source: The American Journal of Legal History, Vol. 39, No. 1 (Jan., 1995), pp. 71-94
Published by: Oxford University Press
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Gesetz und Richteramt
Translation by JAMES E. HERGET AND INGRID WADE*
Statutory Law and the Judicial Function

by DR. OSKAR BOLOW
Professor in the University of Leipzig and Privy Councillor

Leipzig
Duncker and Humblot, Publishers
1885
Summary of Contents
Page
Introduction .............................................72
I. The Relationship between Statute an
II. Differences between Legislative and Ju

Determination ......................................78
III. The Law-Creating Task of the Judiciary in

of Law ............................................80
IV. The Judicial Law within Today's
V. Closing Considerations ............................... 91
*Attorney at Law, Houston, Texas. Juristisches Staatsexamen (Bavaria), 198

Augsburg); J.D., South Texas College of Law 1990; LL.M., University of Hous
Center, 1994.
72 THE AMERICAN JOURNAL OF LEGAL HISTORY Vol. XXXIX
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,
and the inaugural lecture with which I became qualified a few weeks ago
as ordinary professor in the University of Leipzig.
The scanty extent of the writing will probably appear to some to
stand in disproportion to the importance of its subject matter. However,
since I had been compelled from the first drafting of these rich materials
to a treatment that was summarized as tightly as possible and at the same
time aimed at being generally understandable, I had doubts about aban-
doning this dual advantage (which was not won without some difficulty).
For that reason, as I revised the two lectures for the purpose of their com-
bination, I have resisted the attempt, upon good advice, to let them grow
to a greater work. Therefore, I allowed myself to be excused from the
addition of a bibliography. Nevertheless, with the publication of opinions
which are completely opposed to the traditional theory, I believed that I
should account for the way I reached them.
Although the results are relevant to the general theory of legal
sources, they have not arisen from reflections that have been aimed
towards a reexamination of the question of legal sources. To the contrary,
they have developed from procedural observations and investigations,
especially those which had as their subject matter the nature and the effec-
tiveness of the judicial decision.
From there, the conviction arose at the beginning that court adjudica-
tion stands in a much closer relationship to the objective legal rules than is
generally assumed. I have already spoken of this in my publication on the
Theory of Procedural Defenses and Requirements, page 3 (1868). This
opinion concurs, at least in one main direction, with the view of judicial
decisions that was thoughtfully developed in Kierulff's Theory of the
General Civil Law (1839) which, however, had strangely remained almost
completely unnoticed. This was probably in consequence of the over-
whelming influence exercised by the decision theories of Puchta and
Savigny (System of Contemporary Roman Law, volume 6, 1847) who
hardly took notice of Kierulff's view. Perhaps, it was also for the reason
that a sufficiently-prepared foundation of understanding had not been laid
for Kierulff's apodictically-made contention. This is a conjecture that at
least had occurred to me through my own experience because to me the
significance of the Kierulffian view had remained completely hidden and
unintelligible before I arrived at a similar result through procedural
research. Otherwise, to my knowledge, a related view emerged only in the
illuminating remarks with which Blihr's The State under the Rule of Law
1995 STATUTORY LAW & THE JUDICIAL FUNCTION 73
(1864) is introduced.
That fundamental idea gradually became more establis
more fully developed. Therefore, I could proceed in a
before a scientific society in Tiibingen about the unavoid
of the law as it emerged in legal decisions from the statu
could then move ahead to one part of that developmen
more maturely thought out and better grounded as publish
ing. Also, from then on, it no longer lacked commentary
sources which further encouraged me in the pursuit of th
Likewise, Degenkolb stressed in his writing on Compulsor
and Decisional Norms (1877) the statute-like nature of jud
sure, under all sorts of reservations and qualification
expressed without specific reference to the judicial decisio
observed about the individual precept in his Purpose in the
pp. 327-333, 1877) contributed to my maturity of thinking
judicial creation of the law. Long ago, I had already o
Jhering's earlier works valuable elucidation of many
which are of indirect significance for the problem in hand.
Incidental to an article on Fictions and Truth in Civil Procedure
(Archiv fuir die civil. Praxis, vol. 62, pp. 1-96, 1879), it became clear to
me that an important point of support that the traditional conception of the
judicial function had found in the fiction of the legality of all judgments
had become indefensible, and I there indicated somewhat more sharply
my conception of the judicial function in an excursus (pp. 93-94). In the
article on The Dispositive Law of Civil Procedure in the same journal
(p. 84, 1881), an even broader suggestion of this was made.
Until now, all these suggestions have been advanced against no
opposition. This could perhaps count as a hopeful sign judging by most
experiences connected with the raising of new juristic insights. But
express agreement has also not failed to occur. At the most complete, I
have found it from Kl6ppel, The Defense of Legal Force (1882), (particu-
larly pp. 60-67), who grasped my train of thought with deep penetrating
comprehension and pursued it further independently. The book by A.G.
Schultze, Private Law and Procedure (Part I, 1883), on the other hand, in
spite of some points of apparent contact with my ideas, takes paths that
themselves lead further astray. Of the expressions which point to agree-
ment, at least with a part of the opinions represented here, I call special
attention by name to: Laband, The Constitutional Law of the German
Empire (vol. 3, sec. 2, p. 25, 1882); Merkel, Juristic Encyclopedia (1885),
especially pp. 165-167; Windscheid, The Tasks of Legal Science (Address
upon taking over the Rectorship of the University of Leipzig, 1884),
where, on pages 13 and 14, under the direct pressure of highly important
legislative work, is urgently stressed the insufficiency and the nee

supplementation of statutory rules.
Hereafter, I may indulge in the hope that the present attempt
develop and completely establish a theory of judicial law-creation, fa
passing the earlier suggestions, will lie not too far away from that w
others, without expressing it, also maintain to be correct. The real
sion on the correctness of the path taken will depend upon whether
whom this writing most closely concerns, the judges, will find in th
ters here expounded that which fulfills and inspires their profession!
Leipzig, May 30, 1885
We live in a time abundant in statutes and favorable to them.
Certainly, the confidence in the power of achievement of statutory

has been reduced by a prudent measure since historical research int
opened a deeper insight into legal evolution and spread the recognit
that there is another equally worthy method of creating law besides
lation.42 But in spite of that, it has happened that, especially in our
era, the non-statutory law, the customary law, has suffered the fate
strongest atrophy, at least as it appears after the results of that res
More relentlessly than ever, legislation has seized the legal world. T
customary law, hardly a shabby little place remains, permitted by a s
tory act of grace.
And yet, it is difficult to remain calm about the belief in the
supremacy of legislation. Whoever seeks to grasp the function and e
tiveness of the judicial office in its full significance, particularly i
relationship to statutory law, cannot be unmindful of the numerous
ceptions which point to the fact that an abundant law-organizing an
creating force moves in the judiciary which has survived in the mid
all this statutory law and will never be destroyed by even the most
plete and perfect legislation.
Observations of this type shall be set forth here in short summ
For me, the conviction follows from them that we have to acknowle
judge-made law, something peculiar standing next to statutory law
not coincident with customary law, nor branching off from it.
I. The Relationship Between Statute and Judicial Decision
The political power determines by statute what should count as l

In order to protect the common welfare, the legislator forsees the po
ities of how, in the future, human relations and conditions, events
42. This refers to the rise of the "historical school" of jurisprudence led by Friedri
von Savigny. See W. Friedmann, Legal Theory 209-223 (5th ed. 1967).
deeds, can be arranged. He applies to them the measure o

needs, of legal necessities. He examines to what limit, in
and struggles of conflicting human forces, free developme
endeavors that are aimed towards furthering of one's own
permitted--how far the individual will be required to co
benefit of others and, also, in his turn, how the individ
should receive support and strength from others. He sket
covered limits with the clearest and sharpest possible stro
ture of the future.
But, it is not yet valid law; it is only a plan, only the
desired future legal order which the legislator by himse
the power to finish.
Often, the persons subject to the statutes, accompani
legal understanding and filled with just sentiments, confo
to statutory precepts. But ignorance, negligence, self-inter
sions of the human race work together to cause obstacles
the realization of the statutory plan. So, legislation must
fact that it can only imperiously point the way toward cr
order. In order to assure that creation for all cases, the st
over the legislative machinery another legal institution,
Judicial activity helps to carry on and perfect the work o
order that has only begun in the statute.
The activity of the legislator stops with the one-tim
precept. It is the continued conscientious, vocational wor
that is to be thanked for making the legal order, so far a
and ability are adequate, that which it should be: a power
trary knowledge and volition that really controls the life o
In this connection, the actual exercise of power is no
The enforcement of judgments is the consequence, not the
cial activity. The state knows how to obtain the powers ne
the illegal will more surely and appropriately outside th
judges. Not the sword, but the scale of justice is placed in
judge. He has to weigh and to determine what right is. Th
judicial function lies in judging.
From this, it appears as if the judicial activity would b
comprehension, like any other judging, a logical operatio
for which the statutory provision forms the major premise
the case form the minor premise. And, it is usually b
essence of the judicial decision and its relationship to the
correctly so characterized.
Were this correct, a difference would certainly
between judicial function and statute in the basic establish
mination of purpose. This would be badly accommoda
relationship in which they have previously been brought together. M

expounding legal truths already present in the finished statute, or m
engaging in an operation of logical subsumption could not be deeme
be an exercise of the legal-ordering power of the state similar to exp
sions of legislative intent to continue the creation of the law that has
left incomplete by the statute. It would become doubtful whether a p
the sovereign power of the state could be assigned to the judges un
some civil service task alien to the judicial function were acciden
transferred to them in addition. One would also have to ask whether it
would not be right to assign them a place under the men who perform ser-
vice for the community only through their mental labor, science, and wis-
dom, since the judges were also given the very honorable but also very
uncomfortable distinction above all other representatives of science that
they must answer relevant questions within their province with a definite
yes or no and that for them there is no "We don't know" or "We will not
know."
That which the deciding judge has to perform for the state and the
legal order is, however, no mere mental labor. The decision of the judges
is not a judgment in the usual logical sense of the word. It is something
more, more significant, more powerful than its name appears to signify!
The judicial decision rests, like every prudent expression of inten-
tion, upon an act of thought. It embodies and signifies, however, a legal
determination, a legal disposition. It is an expression of will, indeed, a
legal expression of will proclaimed by the power of the state, similar to a
statute.
The state does not announce its legal commands, its legal authority,
its legal prohibitions, merely through the mute words of the statute, but
also and even much more determinitively and forcefully through the
mouth of the judge. The judicial decision as well as the statute are acts of
the state power that forms the law. Like the statutory, the judicial legal
determinations are filled with the power and compulsory force of the
state. The judicial decision has legal force; it carries the entire power of
the law in itself. The judicial determination of law approaches, in its
assigned domain, the power of a fixed obligatory command, even in fuller
measure and with still stronger direct effectiveness than the merely
abstract standards of the Statute.43 Legal force is stronger than statutory
force. The non-appealable legal decision holds its own even if it runs
contrary to the statute. The power of the state, which makes the laws,
speaks its last word, not with the statutory, but with the judicial legal
determination.
This power of legal ordering, not the production of the syllogism

43. This passage is quoted in John Chipman Gray, The Nature and Sources of the Law
164 (1909).
required to create it, constitutes the peculiarity, the essence,

decision. By this means, it is brought into close relationship t
dissociated from the usual private thinking processes with wh
guistic usage lets it carry a common name that is not very fit
is also especially dissociated from the nonjudicial evaluation
that every private individual makes day in and day out, suc
believes himself to be the owner of a thing, or the creditor o
the procedural party who maintains or contests a right. Her
mental activity occurs that is brought to bear on the realiza
truth. But these private legal judgments are nothing other
activities. The private individual can certainly pass judgm
questions, but not final judgment, nor condemnation. His le
is powerless. It lacks the legal force, lacks the significance o
legal decree, and with it the significance of judicial decision
that one hesitates to offer such private legal knowledge and l
as examples of "judgment" alongside judicial legal deter
Meanwhile, on the other hand, science, having the entire the
ment as its subject, is accustomed to treat logic, itself an imp
of judicial decision (for good reason) with stepmotherly reluc
I dare to raise only a rough presumption as to how our lin
dition may have come to select and make use of the express
for the judicial judgment, since that term is uncharacteristic
meaning and misleading in its generality. "Urteil," "ordal", "o
old word in the Germanic language family which former
exclusively for judicial decisions, and like so many then pos
cially favored ways to bring about such a decision (oath
ment) show clearly enough, it had no special relation to l
tions.44 In the course of time, the more the demand was plac
judicial decision that it should be based on careful rational e
the more definitely the judicial act of judgment was allowed
prominent example of a conclusory act after mature conside
legal proceedings and debates, the difficulty and the great sig
a consistent deduction of truth from other truths already est
out with dramatic vividness. Here, one learned to become accu
certain method of truth-finding and to appreciate the value
method. In the procedural rules, one faced a community-
sanctioned logic. So, perhaps this explains how later the lang
ence, in the search for a good German word for the mental
44. The trial by ordeal common in western Europe in the middle ages
methods as the red-hot poker and submersion in water. It was thought that G
a supernatural intervention through these devices and thereby make the "jud
legal judgment was not a rational act by human beings. See R. Bartlett, T
Water (1986).
upon the designation "Urteil," which was originally very remote from
In the use of the other word for the legal decision, which lies
similar direction of thought, namely the word "Erkenntnis," the Ge
language has used its gift for sensitive distinction so much more sec
since it discriminates carefully between the private, non-legally-bi
recognition of a truth and the judicially permitted recognition wh
equipped with the power of objective law.
II. Differences Between Legislative and

Judicial Legal Determinations
The more decisively the nature of the judicial judgment is emp

sized as similar to legislation, the more openly is the distance whic
between statute and judgment to be justified. The differences lie fir
all in the degrees of determination and in the various perimeters in w
each of the two operates in a legally determinative way.
While the statute, as a precaution, looks to the future and seek
mesh with it, the judge has in front of him events and actions whic
already part of the past and which are individualized in accordance
persons, place, time, and other circumstances. Because directed
future, the statute anticipates classes of factual possibilities and co
conditional and abstract legal precepts. The judge, on the other han
always occupied with isolated concrete facts and has to find his
orders unconditionally. In short, the statutory legal determination ex
much more widely and operates more generally than the judicial, b
surpassed by the judicial through the latter's greater certainty and u
ditional immediate efficacy.
There is, however, another difference which carries much gre
weight: between the freedom with which the legislator has the law
power to select his legal regime, and the legal dependency of the jud
the statutory provisions which does not allow him a choice other th
legal effect already drawn by the statute.
This touches upon the essential point of our entire question, bei
the same time a point on which the most serious doubts must appear
the alleged law-creating nature of judicial decisionmaking, wh
assertedly similar to the statutory law.
Is that which the judge has to decree already determined in ad
by statute? Is it sacred judicial duty not to move over the line out
statutory rules or to remain back behind them? If so, it really appear
inconceivable how there should still remain open in addition some k
room for a judge's own legally-determinative and legally-creative e
tiveness. According to this, does the theorem of the legally creative
fession of the judicial office turn out to be a rather dangerous notion
fit to stir doubts about the foundations of the legal order and
Is it not true that what the judge on his own and independ
for the state and the law is exclusively to establish wheth
brought before him are true, sufficient, and the same as th
the statute has fixed the legal consequences prescribed by h
er, this proof-activity and subsumption-activity then not
pure truth-finding, remote from all legislation and law cre
not, therefore, coming back on this path anew to convince
the judgment of the judge is a judgment in the pure logical
And if this were once to be accepted as proven, then th
be lacking a way to accept the legally binding force that
the judicial judgment. If the judgment is taken only out of
legal provisions, then the legal force of the judgment
looked upon as something coming exclusively from the bi
the statute of origin as a consequence or a variation of sta
And, if it were also conceded that occasionally someth
emerges in the judgment than what the statute says, well, t
torily contrary aberrations must be ignored and carefully c
law as something actually legally impossible. The judgmen
have to say, according to law would be considered as exact
the statute even if it contradicts it. Res judicata pro veritat
legal force of the judgment according to Savigny is nothi
"The invention of its truth." Then, why shouldn't the
invention, the fabrication, also come to the aid of the juris
many other predicaments?
With these arguments and accounts, only that opinion
decisionmaking has been restated that has been generally d
short time ago and has remained, even now, the most wides
refutation and with the proof that the judicial office is an in
of the legal order and law-making job of government, noth
is at stake than the significance and dignity of the judicial o
to a still higher degree, also that of legal science.
According to the first interpretation, the independent wo
of the judge would be restricted to the factual side of the
judged, that is, he confirms with diligence, care, and non
whether the facts required by the statute as a condition of
have materialized in the case before him. With respect to t
the question of which legal consequences are to be joined w
facts, nothing would remain for him to do on his own in
These would be given to him by the statute without anyth
order to discover them, he would need nothing else than a
of the statute, the knowledge of reading, diligence, an
understanding. He would only have to repeat the statutory
particular relationship to the individual factual case under cons

to define only the stored treasure of ready-made legal precepts
statute book in single, clean pieces, and to hand these out affixed
stamp of the state.
And what would be the result of this for the assessment of
ence whose only task, indeed, is the recognition of valid legal ru
as it is not employed for other scientific fields or for philosophy a
ry? If these legal rules are already present finished and comple
statute, especially in such a precise, sharp, conceptualized conte
the existing statutes of our time, then it's difficult to see how th
nition should still require some kind of higher "brainwork." An
one could not get along without such science, how comfortable,
able, but also how humiliatingly easy would be its lot in compari
all the other sciences! While the natural sciences have to expend
laborious and often futile effort in order to wrest from nature the
her laws, the jurist would get the subject matter of his knowledge
the legal statutes, from the state without any toil, already clearl
out, delivered, and formulated in principle. And too, all the re
social sciences would yearn in vain after such an immediate and
free manifestation of the truths to be delivered by them, as it is
according to this opinion to legal science by the statutes.
And with this, isn't a view characterized that is shared by m
ple unconnected with the legal professions and that is expresse
offensive, half-teasing, half-mocking remarks which the jurists
to suffer all along? Led by such a view, indeed, even some grea
tors have nourished a lively discontent against the undertaking
scholars to want always to say better that which is said best in th
Above all, the world-legislator Justinian felt inclined to inflict
penalty upon anyone who would do that with his statutes, abrupt
a falsarius, a destiny that the jurists always have known how t
with their well-known cunning, although they otherwise accept
the validity of Justinian's statutes.
No! The powerful mental work to which legal science can p
point through thousands of years shows that a conception of t
function which leads to such disparagement of legal science, whi
all, works solely with the judicial office and "pre-thinks" for t
must be wrong from the ground up.
III. The Law-Creating Task of the

Judiciary in the History of Law
It becomes immediately apparent from a look at the historic

ment of the legal order how little one would do justice to the im
of the judiciary if one denied it the task of creating law.

In all nations, the judiciary was vitally involved in th
the law. It contributed as much, or rather, much more, t
to the formation and development of the law.45
The state power fulfilled its task of ordering the law
a long period of time, exclusively through the judiciary
pass before the state reached a law regulated by statute
since the young nation is not full of an unselfish urge to
legal truths. The law is a result of experience. It had to b
imenting; it is a result of bitter legal necessity that pus
case to arbitrate the dispute of human egoism and pass
gered property and life, through the neutral decision of
authority.46
Not yet bound by statute, the adjudicating state pow
with the same freedom as later did the legislative state p
ly purely judicial order lacked any legal constraint, even
also only equal to the legislature) was under the guidan
justice that was pulsating in the people, although freque
by opposing currents of legal sentiments, even though it
in consistent paths by the power of custom that benig
life. It was not sufficiently protected against the dange
biased oscillating decrees. Through the pressing sense o
the people were finally led to the resolution to move fro
cial to a statutorily-regulated legal order, but also to tak
of the old judicial wisdom.
The legally gifted ancient Romans once took this step
energy and insight when they put the entire legal order
ground with their Twelve Tables. But did this end the la
of the judiciary? The most important and best auth
Roman legal history prove the opposite!
We are told how soon the trials, the disputationes fo
only to help expand the foundation of the Twelve T
45. Billow was familiar with Roman and Continental legal history
phases of judicial lawmaking. He seems not to have been familiar with
common law whose history would have supported his argument as w
Roman and Continental examples.
46. This sentence is an interesting parallel to Holmes' statement
(1881) that, "The life of the law has not been logic, but experience
statement of Rudolf von Jhering, "Das Leben ist nicht der Begriffe,
sind des Lebens wegen da. Nicht was die Logik, sondern was das Leb
Rechtsgefiihl postuliert, hat zu geschehen, mige es logisch deduzierba
[Life is not from conceptions, but conceptions are there because of lif
tulates, but what life, intercourse, the sense of justice demand, has to
logically deducible or impossible.] R. Jhering, 4 Geist des r6mische
1891) (original published 1852-65).
break off some pieces and to add new ones. And when the need for de
changes of the law became apparent, these also were not, for the most
part, accomplished by statute, but were left up to the law-transformi
work of the courts, at least as far as the inner, particularly private lega
circumstances are concerned.
The authority of the court, the praetor takes care of this task for
almost half a millennium. A court-made or civil servant-made law comes
into existence, a ius praetorium or honorarium, that is not satisfied merely
to execute the statutory law and to complete it, but which also steps into
its way everywhere with contradictory, adverse rules.47 From case to case,
it pushes them through, safeguarded against too much inequality and arbi-
trariness merely through the annual preannouncement of the intended new
legal rules for the term of a year. In addition, the lay judges appointed by
the court authorities were not hindered but were even ordered to take
more and more into account the many new needs of legal intercourse tha
extended far beyond Rome and the Romans, including the needs of goo
faith, business honor, and equity. The observance of these values ha
been until then only a free de facto custom without statutory authority
often in full contradiction to the rigid and narrow-minded statutory law. It
was a judicial creation of the law with which modern theory does not
quite know what to do because it applies the crooked stencil of the cus-
tomary law, modern theory having turned its back on the law-creating
function of the judge, yet also having given up the belief in the omnipo-
tence of the legislature.
The Roman law owes most of the greatness that secured its world
power beyond the existence of the Roman Empire to the work of judge
made law which was industrious, free and yet moderate, noble-minded,
and led by brilliant jurisprudence.
As a consequence of just that work, only ruins of the statutory law
remained at the beginning of the era of the Roman emperors. Once again
as before with the legislation of the Twelve Tables, the bad state of affair
of a too unstable judicial legal order not secured by statutes was felt in th
extreme. But even the new rising power of the emperors did not dare or
could not always make headway against the huge stream of that legal pro
duction. It limited itself originally to isolated attempts to confine it here or
there. The opinions of legal scholars, which the courts had learned to fol
low on their own, were given some legal force by Augustus. Under the
following emperors, some matters of the legal order were improved by
Senatusconsulta. How little one tended to leave the traditional paths of
court-made law can be clearly seen in the fact that these senate decrees
47. For discussion of Roman legal development, see P. Thomas, Introduction to Roman
Law (1986) (hereinafter cited as "THOMAS"); H. Jolowicz, Historical Introduction to th
Study of Roman Law (2nd ed. 1952).
tended at first to be drafted as mere regulations of court p

finally stopped the free development of the entire civil-ser
by his edictum perpetuum. But when the emperors thems
proceed with new legal rules on their own, even they limit
for almost another two centuries to do so on occasion of i
cases as administrators of the highest court office. This is
vincing proof of how deeply rooted the judicial method of
really was. Only beginning with Constantine did they follo
general legal regulations announced in statutory manner.
Next to those, however, there still remained the main
law consisting of that which the court practice had develo
behind. It is not without deeper meaning that this co
remained honored with the more important title of ius in pre
anomalous imperial novation of the law, leges. From this l
er, the originally fresh, law-creating spirit had disappeared
jurisprudence which had led the entire judicial law movem
The most pitiful means had to be used somehow to lead
judges in the confusion of the multifaceted tradition of cou
Justinian finally overcame the state of distress. He ca
ume of judge-made law, until then still liquid and oscillatin
into the rigid form of the statutory law.48 The judicial leg
of the world of the old culture, lasting almost one millenn
its conclusion in his great work of codification.
Again, through another millennium, the modern peop
the Germans, also had to follow the path of legal developm
courts before they obtained the benefit of a firmer st
Miraculously enough, this came through that work of codif
had its origin in the judge-made law of the old world.49
Our ancestors were even more decisively and consistent
the statutory formation of the law than the Roman p
been.50 The thought that the state power has an obligation
the people by legal rules that are binding on everyone, an i
for our time (so accustomed are we to statutes), only began
plated at that time. The medieval state believed it was suf
inner legal order to set in motion the judicial power.
48. Justinian's Code was promulgated in 533 A.D. after a drafting period
in which the drafters sought to utilize the best of the earlier legal schola
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 of Medieval 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").
And the judge did not even have to decide himself. The law w
"found" by the court assembly, the community, by lay judges, and jur
It was "asked" of them by the judge and his officials from case to cas
It was a "people-questioning law," free of the proscription of st
legislation.51
The only thing that held this judge-made law together was the actual,
not legal power of custom and the loyalty with which the people making
the decisions were tied to the traditional decisional wisdom that was hand-
ed down'from generation to generation. The research of our century
turned to that law again with loyal love and brought to the surface that
richness of thoughtful, healthy, and prudent legal construction hidden in
the old German decisional law.52 But it was not blessed with the luck of
the Roman law! Nowhere did judicial law creation, untouched by statuto-
ry constraint, appear in such purity. But also nowhere did its inadequacy
appear with such clarity as in our medieval law.
Lacking statutory and even judicial discipline, without the guidance
of a learned profession,and without a firm state center, our domestic law
was split into numerous village, city, and guild tribunal traditions which
persistently and stubbornly held on. In the long run, they were unable to
do justice to changes in social conditions and needs and to make out of
themselves the difficult transition from an old rural law to a legal order
which corresponded to the upswing of commerce and trade. Since the
13th century, the emperors as well as the highest judicial authorities of the
individual states and countries became gradually unable to exercise the
power to enforce judgments. Then, a period of bleak legal confusion and
legal insecurity began in which the possibility of transforming domestic
law through our own radical statutes, already a far-fetched possibility,
became completely unreachable. Germany could not help itself out of the
predicament of its judicial law.
Then came rescue across the Alps through exactly that code that
once was destined to end the predicament of Roman judicial law!
Germany abandoned its free and colorful judge-made law in order to
obtain the benefit of a firm and generally effective statutory law. But at a
heavy price! Instead of its own warm-blooded law that had intimately
grown together with the German character, it had to accept a law written
in a foreign language, thought in a foreign spirit--dead law, the code of a
long perished nation!
And in which manner, through what legal sources, arose this
immense change in the law that deeply shattered the national life? Solely
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.
through the courts, through the law-transforming power

office!
No German statute introduced the Roman statutes.53 W
the end of the 15th century, the Roman emperors of the G
occasionally declared their assent to the application of thos
mulgated by their ancestors of the Holy Empire -- w
Frederick the Third expressed the wish on occasion of his
letter to the newly founded University of Tiibingen that thos
be better infused into the ears of his subjects, was th
Germany already a matter of course and for the major part
The introduction of the Roman law was effectuated from decision to
decision out of the midst of the courts through their own free decision.
Men who were instructed at Italian, later also at German universities, in
Roman statutory law, turned away as judges from the confusing and con-
fused domestic judicial wisdom and applied instead the scientifically clar-
ified statutory law of Justinian, which so frequently accomodated the
needs of that time. And, the people looking for the law themselves pre-
ferred to turn to those judges instructed in the foreign law. The meeting
places for courts where previously juries had met under the open sky
themselves became deserted. The hedge judges, who were not seriously
bothered by getting rid of the inherited law, faced scorn and mockery with
their decayed rural legal wisdom. Some of them snatched at convenient
expedients to gain some knowledge of the foreign statutory law that had
become popular, trying to imitate the learned judges until finally even
bunglers had to quit the field.
This whole process is the clearest of all revelations of the power of
free judicial lawmaking. Here it shows that this power can even rise to the
repudiation and displacement of one's own deeply rooted legal tradition.
The behavior of these disloyal judges, defecting from the domestic
to the foreign law, must remain a puzzle to anyone who does not want to
know anything of the law-creating task of the judicial office and who,
caught in today's views of statutory law, believes it to be a given fact that
above the judicial decisions there is always a ready abstract legal norm
which leads and binds them. Only this prejudice is the reason that it was
so difficult for our theory to understand legally the reception of the
Roman law. What makeshifts were resorted to in order to find an abstract
legal rule that would make those judgments legitimate by which the
Roman law gained power over German legal life! For that purpose, the
fairy-tale of the statutory introduction of Roman law was once invented
and for a long time believed. Since that belief has become untenable, the
53. For discussion of the causes of the "reception" of Roman law in Europe, see A.
Watson, The Evolution of Law 66-97 (1985).
other newly discovered legal source, the customary law, had to ser
the means of creation. In order to satisfy this prejudice, one was will
believe that a transformation of the law that contained the steepest
with legal tradition, the renunciation of all law one was used to, w
consequence of customary law!
The simple solution to the puzzle is given by the law-produ
power of the judiciary itself. The judicial power to develop the
unlimited by a statute and certainly not limited and directed b
abstract legal rules, celebrated its most complete and highest trium
the reception of the Roman law. To be sure, it was also its last one
celebrating it, it already placed itself under the yoke of the statutory l
IV. The Judicial Law Within Today's Statutory Law
But, our adversaries will interject, after the courts have subjec
themselves to the reign of the statute, and after the modern state
entirely learned to exercise its legislative tasks better, more indepen
ly, and more completely, is not now the position of the judiciary so
pletely changed that nothing remains of its former law creating mi
At least is not the judge reduced to the more modest task of merely
cally subsuming the law?
It has to be plainly conceded that the original complete legal f
dom of creating the law judicially has disappeared and will probabl
gone for all foreseeable time.
The more decisively, sensibly, and carefully the legislature see
complete its task of ordering the law, the narrower have been the
ways for the judge when decreeing his legal rulings. Consequently,
legal order is more protected against individual judicial arbitrarine
desire for innovation in the law, more protected against insecurity
confusion. That is exactly the blessing which the statutory legal or
(that was won while sacrificing the domestic law) brought us. This
ing is yet further enhanced since legislation now shows the only po
decision in advance for an infinitely huge number of cases. Thus, l
tion is cut off in advance, and, at least in civil cases, the need for a j
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
absolutely contrary legal reasons. This could even be based

sections of the Code on which the judgment of the lower c
Thus, he may feel the brisk inclination to join those who w
the law besides sword and scales also a third, a waxen symb
Even the most complete legislation is as yet unable to
legal order by itself. It cannot even draft the plan for su
completely in all details. The statute must leave many
things up to the independent, and in the details more exact
work of legal order to the other institution of the law, the ju
Since legislation has to provide for an uncertain future,
a piece of worldly providence. It must come to know amply
how weak, how deceptive, it is in itself.
Day after day, real life mocks legislative foresight. Its
diversity teaches over and over again how presumptuous t
be that the legislator could anticipate everything the future
force it into its rigid, dead rules.
Due to the millenia-old experience of the courts and th
judge-made law, the legislator is prepared for a large num
typical cases. But not even the most ample experience, no
care, not the most animated imagination, is a match for th
in which the free striving human will, the inventive sense
the slyness of egoism and crime, in combination with
beyond any human foresight to control, force the creation
and most intricate legal problems. The legislature could not
problems and thus could not desire a solution, much less co
ready.
How many new tasks to create the laws have appeared even in our
days merely as a consequence of the astonishing completion of the means
of transportation and communication, the most different and strange legal
issues of the train, post, telegraph, and telephone traffic, about which
there was nothing in the statute and about which there could be nothing!
Some years went by before legislation was able to limp after this with
new legal rules. In the meantime, however, these new forms of inter-
course had already approached the courts in many, often the most difficult
cases, with the pressing demand for an immediate decision, i.e., for the
immediate order of judicial legal rulings. Taught by those, and thus pre-
pared, the legislature could proceed to the promulgation of generally bind-
ing legal rules. Thus, even today, the judicial legal precept has to precede
the legislative one and prepare the way for it.
But not only in light of such extraordinary and surprising changes in
the ways of life can the inadequacy of the legislative ability to order the
law be seen. It also becomes apparent in the most ordinary cases in any
litigation in which the parties fight each other bona fide with opposing
legal reasons. It can be seen with the greatest clarity when the legal
ation of the findings of fact undergo changes by the judge from one
to the next. Each of these innumerable cases is a characteristic legal
lem for which the appropriate legal rule is not yet ready at hand i
statutes, and, as experience has shown so painfully, also cann
deduced from the statutory rules with the absolute certainty of a c
logical conclusion.
Not only for the legislator, but also for the judge, there is miss
logical necessity of connection between facts and legal consequence
legislator, however, cannot anticipate and think through for the jud
legal ideas because of the individual case's different factual elemen
each other and entangle, oppose one another and cross. The statute
depend upon the isolation of factual types cannot provide for these
connections,and, thus, also cannot be thought of with a legal rule w
directed towards them.
Even if the same persons who cooperated towards the promulgation

of the relevant statute were appointed as judges for the individual case,
they could not find the appropriate decision with absolute certainty.
Approached individually, they would often reach different results, even if
they had adopted the law unanimously.
And it would be a completely false hope if the legislature believed it
could prevent the independence and the difficulties of the judicial finding
of the law by entering into individual and special situations itself as much
as possible. The multi-volume, case-oriented codes proved themselves
long ago to be the worst, most tangled, most confusing, and the most
insufficient. If the legislator wanted to reach that goal, he had no other
choice but to offer, upon request of the courts, to give them the appropri-
ate decision from case to case. Thus, under the mask of the legislator, he
would exercise the judicial office himself. This is also the desperate
means of clarification that Justinian once announced in his jealous overes-
timation of the legislative power without realizing that he thus only
admitted the inability of the legislation to regulate and order the law
sufficiently.54
As a consequence of many sad experiences, the newer legislation has
become more and more puzzled and alarmed at its omniscience and
omnipower. It often and gladly abandons the wasted effort to master the
fullness and diversity of real legal life. It has become an often-used and
much-tested method of legislation to authorize the courts expressly to
chose freely between several legal rules in many and important relations,
to leave it up to the judges' legal insight and sense of justice. They may
thus think of the legal consequences that best fit the particular facts of the
54. Biilow refers here to Justinian's prohibition of commentaries on his code.
case, pick them out, and determine them with binding fo

numerous dispositive legal rules, the characteristic task o
determine the law is recognized most openly and is called u
help by the legislature itself.
Next to this, however, there are numerous absolute, b
rules that leave no room for judicial discretion. Even in so
way is opened by dispositive legal rules, it remains surro
mountable statutory limits. Furthermore, there are many
whose facts do not contain particularly intricate circumsta
fall simply and completely under the rules of individual
Code. In the area of such legal rules and cases at least, isn't
istic and independent finding of the law by the judge no
abolished?
This has to be denied, too! Experience teaches that also in cases of

that kind the individual power of the judge to determine the law is fully
active.
The opportunity of this is presented particularly by the incomplete-

ness, the insecurity, and the ambiguity that are often inherent in legal
thought and legal will themselves.
Our statutes are not the uniform declarations of intent of individual
persons! They are collective declarations; many and diverse human beings
participated in their development. If we wanted to make a survey of all of
them as to what "he," what this many-headed legislator actually thought
and intended, we would find that some, as honest men, would be com-
pletely at a loss for an answer. They may not have thought anything at all
about this legal rule, and maybe they were not even able to understand the
legal draft which was full of legal terms, even if they really read it
through. As for the rest, we would have to be ready for the possibility of
various types of answers. How often appear openly opposing opinions of
the jointly adopted statute in the legislative proceedings!
Under these circumstances, the unity of the legislative expression of
intent is limited to the text. Under the deceptive veil of the same statutory
text, there lies a multitude of legal opinions and directions of legal intent!
The statute does not tell us which one of them is the right one. It is left up
to the judge to make an inner unity out of this multitude or to chose that
legal rule which to him appears as the one that is most correct on the aver-
age. And as dutifully and carefully as he uses all available sources of
information, there is nevertheless no statutory order given to him, and
there is no legal limit in this choice. Any result that he reaches is
approved in advance by the state as the correct one and endowed with
legal force!
It is possible that the result was not thought of by even one of the
persons involved in the adoption of the law! What subtle and deep 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 thi
exquisite legal wisdom in their heads or had even a clue to the major part
of these legal ideas? How would then the much desired and praised "new-
ness" of a model legal opinion comport with its rightness when merely
that which the legislator has already thought of would be right?
Certainly, the law is often shrewder than its drafter, the Code wiser
than the legislature! With other, more moderate words, and probably also
more on point, one often credits judges with a greater and better legal
insight than the personnel of the legislature.
It is much more often than one might think that the legislator openly
confers this trust on the judge. He himself refrains from his own opinion
and interpretation of the statutory word and leaves it up to the judge to
determine the true meaning and to announce that which he recognizes as
right to the parties involved who cannot agree about the meaning of the
statute as the final expression of the will of the state.
This regularly happens when the legislature adopts a traditional legal
rule in the conventional formulation into its Code without determining it
true importance, but only for the reasons that it has proven good so far;
and thus, the hope is justified that it will prove right in the future. And i
this not the manner in which every Code attains the adoption of entire
large groups of legal rules and not exactly of the most unimportant or
least successful? Did the drafters of the Justinian Codes, when they mad
the noble legal wisdom of the old times the law, take this fully into thei
minds, into their legal thoughts and desires? Would they even have bee
able to do this during barely a three-year term for their work in tanta
legum compositione quae ab immenso librorum numero collecta est? Can
we not in our times also read in the motives of statutory drafts often
enough that the true meaning of this or that traditional rule remains to b
seen for the time being and that the determination shall be left up to th
efforts of "science" which is often asked for help under such circum-
stances?
In this frequently used technique, the legislature, instead of coming

up anew with a legal rule itself, instructs the persons appointed to apply
the law to take the rule out of the legal past, most often out of antiquity, in
which the legal structure was not cut in the chains of the statutory word,
but was still left up to free configuration through the jurisdiction of the
courts. Thus, the legislator, who allegedly terminated the judicial creation
of the law, still seeks refuge in it. The judge is referred by statute to the
judge in order to find out what the law is!
The independent power of the judiciary to determine th

ly able to reach a breakthrough even in contradiction to th
determined meaning of the statute and in contradiction to
hope of the legislature. This becomes possible due to the ma
that stand in the way of the correct comprehension of the sta
The danger which threatens every attempt to express an
external means, the danger that it will not be brought to a
safely recognizable expression, also defeats legislative ideas
are most carefully and exactly put into words! It threatens
when the mute statutory word cannot adapt to the underst
single individual, but even more addresses uniformly mill
beings, often over a long series of generations.
Thus, when it so often happens that judicial decrees are
the true meaning and intent of the statute, it has to be su
unavoidable fate, as a tribute that the legislators and judg
weakness of the human ability to communicate and compre
ther this exculpatory thought, nor any juristic trick can le
the exposed truth; all of the many deviations of the judicia
the legislative regime are nevertheless confirmed by the p
state. The state is compelled to put up with them and to g
stamp of legal force. Even a judgment contradicting the law
is, like every judgment, a determination of the law that has
state, is approved by the state, and is provided by the state
of compulsion.
However, by this, nothing more is said than the judge is also
empowered by the state to deal with such legal determinations that are not
contained in the statutory law but are solely found by the judge, indeed
invented by him, not selected and intended by the statute.
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
Savigny, the fight against the belief in the omnipotent power of legi
was taken up enthusiastically and carried out victoriously. With the
buttable proof that legislation is not the single dominant kind of lega
struction, the historical school inaugurated its great successes. But d
all this animosity toward the traditional theory of legislation, we rem
caught in an erroneous conception which has its origin in that theory
we are still caught in it now. Today, it is still assumed as settled, i
even taken as self-evident, that the non-statutory construction of
could take place only by creating generally valid abstract legal rule
lar to the statutory ones.
Such statute-like determinations of the law, however, are impos
for the judge to make. His power of determining and ordering the
does not go beyond the individual legal relationship to be decided. B
only the assumption that a legal order can be created solely by abs
generally binding legal commands can explain the fact that concrete
cial determinations should not have been allowed to be regarded as
ordering acts of state power. That assumption has been rebutted by
clearest testimonies of legal history. It has been caused by the analog
statutory law; it has been furthered through the erroneous equating
judicial decree with logical decision, and, in addition, through the fi
of the "truth of the judgment." Surely, a legal order that the state c
and maintains exclusively by individual judicial legal rules is a f
incomplete one, exposed to many insecurities and fluctuations.
despite all defects, it is and remains a legal order, too. And even be
the concrete judicial determinations of law finally came under the le
ship and regulation of abstract statutory legal precepts, that happy tren
social accommodation, the power of habit, deeply rooted in human n
had taken care that this judicial case-law reached a high degree of co
tency. In addition, this was greatly increased by the fact that the ju
who were not yet governed and covered by the authority of the sta
had to feel an urgency at that point to gain at least some firm grip o
law. They had to create that law on their own responsibility by takin
consideration the custom and practice of legal intercourse, even if o
the hope of thus obtaining the approval of their legal colleagues.
As the reception of the Roman law shows with particular clarity
theory now took flight to this unimportant and purely factual (not
character of nonstatutory law in order to be able to find in that nonsta
ry law, pursuant to that prejudice, the appearance also of abstract re
tion. The incidental trait of approximate consistency was taken as it
trait, and in consequence its true character as judicial law was misu
stood. Thus, it happened that the judicial creation of law was so long
den and covered under the false cloak of customary law which was
lored after the model of statutory law.
And so, it can also be explained why our legal theory

so little receptive to the appreciation of that nonstatutory
developed constantly in the midst of all the statutory law
inexhaustible power. Today's judicial law was not willing
scheme of any abstract legal order, nor even to find a shelt
prepared vestments of the customary law. To be sure, som
to make out of the material of the customary law a "law
"law of science." But these attempts also had to lead as
aimed solely at obtaining abstract, generally binding judi
and with good reason they have experienced the most dec
Thus, theory had no other way but to ignore the existence
a strange example of the most rare, but nonetheless unco
denial! A jurisprudence that does not want to know anyt
law denies itself its right to exist!
Whoever is able to break loose from that prejudice mu
give his conceptions of the basic foundation of the legal o
different direction that they had assumed on the basis of t
necessity of abstract production of law.
It turns out that the statute is unable to create law d
statute is only a preparation, an attempt to effectuate a
statute contains only a directive as to how the legal o
arranged. This directive is first of all aimed at the peopl
those people with whose legal relations it deals. The more
tain, and clear the statutory directive,and the abler and so
sense that fills the people, the more frequently the peop
find the appropriate legal rules themselves and will obey t
ing together in full agreement without the power of the stat
If this fails, however, then the judicial function has to be
order to proclaim the required legal ruling in the name of
connection, the judge has to stay within the legal limi
statute just as legislation is bound by the limits of the sta
But in neither of the two cases is the legal determination
given by the statute. It is found there first by the partie
first by the judge. The statute shows to both only the path
finding.
Only after the abolition of that prejudice and only through clear
recognition as to why the courts have an important part of the law-creat-
ing activity to the state power, does the full significance, the high mission,
of the judicial office come distinctly into the light. And so also does the
significance of legal science which is the soul of the entire administration
of justice.
Neither the insight nor the power of legislation comes close to real
legal life. The abstract mute command of the statute cannot dominate the
diverse, stormy movement of common human life. This it can onl

together with the living power of a will that drastically intrudes di
into life. The legislature conceives the legal thought still unfinishe
parties involved, and, if they do not become unanimous, the judges
it to the end. In the statute, the will of the state power to order th
does not yet come to a conclusion; it only emerges completed in ju
rulings.
Thus, legal growth can do without the dead word of the statute so
much more easily than the viva vox of the judicial office. For that reason,
the state power was able to accomplish its job of ordering the law without
legislation for so long. It has never been able to and will never to able to
without the judiciary! For that reason, the rise of legislation has not been
able to displace the power of the judiciary to create law, but that power
has only been put under the guidance of legislation.
While the judge had to create his legal rulings in earlier times out of
the free-flowing, yet often lazily marshy spring of the people's sense of
justice, so now the source of his state-empowered law-finding is more
firmly delimited, more clearly anticipated, more securely sheltered. Only
out of this source, indicated and guarded by the statute, may he fetch
the law.
But the statute itself is not the source! The legislator does not him-
self produce the legal substance. He only gives the order as to where it is
to be found and how it is to be fashioned. The law does not lie on the sur-
face, comfortably reachable by anybody: it is hidden in the totality of the
life of the people and state, deeply entrenched in the past of the people --
of the peoples!
In order to get the law from there, it takes serious work, broad
knowledge, and a sharp, educated spirit to fashion it according to the mea-
sure of the statute. It takes fine and delicate legal sense in order to strike
the correct determination of the law within the statutory limits, and it
takes firm will constantly directed towards the law to administer this
responsibility-filled high office justly and impartially!
The law-creating insight and ability is gained through education in
legal science. The just way of thinking is the achievement of moral char-
acter-building. Fortunate is the country whose judges have done entirely
well with both! A people who cannot rely on the legal insight and justice
of its judges is perished and lost despite the best statutes.
Not just the statute, but statute and judiciary create law for the
people!

Gesetz Und Richteramt

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Gesetz und Richteramt: Statutory Law and the Judicial Function

Author(s): James E. Herget, Ingrid Wade and Oskar Bülow

Translation by JAMES E. HERGET AND INGRID WADE*

Statutory Law and the Judicial Function

Professor in the University of Leipzig and Privy Councillor

I. The Relationship between Statute an

II. Differences between Legislative and Ju

III. The Law-Creating Task of the Judiciary in

IV. The Judicial Law within Today's

V. Closing Considerations ............................... 91

*Attorney at Law, Houston, Texas. Juristisches Staatsexamen (Bavaria), 198

legislative work, is urgently stressed the insufficiency and the nee

We live in a time abundant in statutes and favorable to them.

Certainly, the confidence in the power of achievement of statutory

I. The Relationship Between Statute and Judicial Decision

The political power determines by statute what should count as l

deeds, can be arranged. He applies to them the measure o

relationship in which they have previously been brought together. M

This power of legal ordering, not the production of the syllogism

required to create it, constitutes the peculiarity, the essence,

II. Differences Between Legislative and

The more decisively the nature of the judicial judgment is emp

particular relationship to the individual factual case under cons

III. The Law-Creating Task of the

It becomes immediately apparent from a look at the historic

of the judiciary if one denied it the task of creating law.

tended at first to be drafted as mere regulations of court p

through the courts, through the law-transforming power

IV. The Judicial Law Within Today's Statutory Law

absolutely contrary legal reasons. This could even be based

Even if the same persons who cooperated towards the promulgation

54. Biilow refers here to Justinian's prohibition of commentaries on his code.

case, pick them out, and determine them with binding fo

This has to be denied, too! Experience teaches that also in cases of

The opportunity of this is presented particularly by the incomplete-

In this frequently used technique, the legislature, instead of coming

The independent power of the judiciary to determine th

It has been shown how the alleged completeness, determinacy, solid-

And so, it can also be explained why our legal theory

diverse, stormy movement of common human life. This it can onl

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