Bülow’s realistic diagnosis of the court’s actual practice. But he maintained that one had to aim at drafting the legislation in such “a scientific way” that the freedom of interpretation was restricted.There could be no doubt, said Zitelmann, that the legislator was better equipped for legislating than the court; in particular, the court lacked the ability to foresee what would be the result of their interpretations regarding the production of new law.Also, the doctrine of precedent was not a sufficient instrument for this purpose, as Zitelmann claimed that the selfbinding function of precedents was only of a factual character, not of a legal one.Only very imperfectly could one forecast future court decisions. Zitelmann therefore suggested a sort of Edict for the courts. The courts ought to be given a limited legislative competence which could formalize the demand on legal predictability in society – “aber warum macht man nicht aus der thatsächlichen Binding durch Präjudicien eine rechtliche?”22 The legislative function of the court within the framework of formal legislation was an unavoidable reality. But the Edict of the courts –by Zitelmann called “Rechtsschaffungsact” - would contribute to a formalisation of this aspect of the legal system. James Bryce (1838-1922) presumably represented the most significant contribution to a renewed interest in the Roman Praetor in English legal science at the turn of Century. James Bryce was among the most prominent legal scholars at the time and he had been Member of Parliament for almost thirty years and a liberal cabinet minister under Gladstone and others.23 In one of his key texts on legal methodology, “Methods of Law-Making in Rome and in England”, Bryce discussed the relevance of the Roman Praetor.24 The article was part of his dag m i chal s e n 187 sche Reich (Berlin 1889) [being part of a personal draft to the new Civil Code of Germany, Bürgerliches Gesetzbuch]; for what follows, see esp. pp. 6-7. 22 Zitelmann, Die Rechtsgeschäfte p. 7. 23 See further Richard Cosgrove,Our Lady the Common Law.AnAnglo-American Legal Community, 1870-1930 (NewYork 1987) pp. 59-94 and JohnT. Seaman, A Citizen of theWorld:The Life of James Bryce (London 2006) Ch 4-5. 24 Bryce, “Methods of Law-Making in Rome and in England” in Bryce, Studies in History and Jurisprudence II (London1901 ed. 2001) pp. 669sq. in particular pp. 698708 for the following quotations.The text was written during the 1880s (cfr. preface), but published in 1901. IV
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