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it guarantees security or, on the other hand, is a factor of great insecurity. This is the most serious defect of a legal system in which the first stage of the application of the law, the ascertainment of the delict and the determination of the party responsible for it, is decentralized. It is more serious than decentralization in the second stage, the stage in which the use of force is authorized by the law as a sanction, although decentralization in this stage also renders the security function of the legal order problematical. The use of force operates as a sanction and hence acts as a guarantee of security satisfactorily if it normally results in overpowering the party against which it is directed. This result is not secured if the function concerned is decentralized. However, even if it is secured in some way, there must be a certain guarantee that the enforcement measures provided for by the law as sanctions are taken only against the party responsible for the delict, i. e., only against the party responsible for the illegal use of force, that is, against the aggressor. Consequently, first of all, there must be a legal procedure in which the decisive fact of the existence of a delict, i. e., of an illegal use of force, is established and in which the party responsible for the delict, the aggressor, is determined in an impartial way by a decision binding upon the parties. This is done by taking the power of deciding the fundamental questions as to who is right and who is wrong away from the parties involved in a conflict and by conferring this power on a special organ. In other words, this is done by centralizing the legal function which is the basis of all further steps leading to the enforcement of the law.
An essential condition for the impartiality of the organ concerned is that it be independent of the parties to the conflict as well as of other organs of the community, particularly the government of the community. If the organ enjoys such independence, it has the character of a tribunal, and an individual fulfilling this function has the character of a judge. Then the function of ascertaining the existence of the delict and determining the individual or individuals responsible for it is a judicial function. It is hardly possible to overestimate the importance of this step in establishing a system of collective security. As a matter of fact, historically it was the first step in the centralization of this system as applied within the legal community. Tribunals were the first central organs established within primitive society in time of peace. They functioned long before special legislative and executive organs came into existence. They were first created only by agreement of the parties to the conflict and only for particular cases. Later they became permanent institutions and assumed compulsory jurisdiction. This meant that they became competent to decide cases brought before them not only by an agreement of the parties but by one party or
even by none of the parties but by a special organ, the public prosecutor. The functions of tribunals were originally restricted to deciding whether or not the law had been violated and who had been responsible for the violation. They could recommend an agreement concerning compensation for an illegally caused damage. However, they did not have the authority to order and make binding the execution of the sanction in case no such agreement could be reached, and they had no means of enforcing the law at their disposal. This function was left to the party injured by the delict ascertained by the tribunal. Its centralization was the last step in the development of that system of collective security which is the law of the modern state.
As long as only the judicial function but not the execution of the sanction is centralized, in other words, as long as the means for the enforcement of the law are not concentrated in the hands of a special organ strong enough to overpower any delinquent—that is, to render successful resistance against the executive force of the community impossible in principlecases where the law remains unenforced because the delinquent is more powerful than his opponent may be quite frequent. Hence, only a relatively low degree of security is reached. Nevertheless, the importance of a centralization restricted to the establishment of tribunals without the centralization of the execution of the sanction should not be underestimated. There is an essential difference between a situation in which the question as to which party in a conflict between two parties is right and which is wrong cannot be decided in an objective and impartial way and a situation in which it can. The chance of the law being obeyed is much greater in the second situation than in the first even if the law cannot be enforced by a central organ of the community. If a party is declared to be wrong by decision of an impartial tribunal, it will be much less inclined to enforce its illegal claim against a party declared to be right by the tribunal or to refuse to comply with the legal claim of this party. Where courts competent to decide this question exist, the readiness of the parties to a conflict to settle this question by agreement is much greater than it is under a social order which authorizes each party to decide this question for itself, thus enabling it to justify any enforcement action taken for the realization of its interests. The moral power of courts has played a decisive part in the evolution of the law, and it remains greatly important for the efficacy of a legal order and thus for a collective security established by it. From the point of view of this security, the value of the centralization of the executive function remains problematical if this centralization is not preceded by the centralization of the judicial function. In other words, this value is problematical if the employment of force by the central organ of the com
munity is not determined by the decisions of independent tribunals applying pre-established law, if this central organ can use its power not to maintain or restore this law but to realize political interests not necessarily in conformity with this law. In the field of internal relations there are indeed systems of collective security which correspond to this type of organization.
3. THE PREVENTION OF THE ILLEGAL USE OF FORCE BY
THE PEACEFUL SETTLEMENT OF CONFLICTS
The centralization of the first of the two functions of the application of the law—the ascertainment by special organs of the violation of the law and the determination of the party responsible for it—is the most effective means of bringing about the peaceful settlement of conflicts. The establishment of such organs is particularly effective in this respect if, as is usually the case, they are also competent to recommend, or even to order, the guilty party to repair the wrong by restoring the situation which existed before the delict was committed, or, if this is not possible, to compensate for the illegally caused damage. If the party concerned complies with this recommendation or order, the use of force both by the parties to the conflict and by the community (i. e., the use of force as a sanction) is actually prevented.
Prevention of the illegal use of force is usually distinguished from its repression by the legal use of force, i. e., the execution of sanctions. However, this distinction is only relative. The purpose of repressive measures taken in a concrete case as a reaction against an illegal use of force is to prevent, by deterrence, the illegal use of force in the future. If special organs for the peaceful settlement of conflicts are established, and if the legal use of force (i. e., the execution of a sanction) is permitted only after these organs have ascertained the existence of the delict (i. e., an illegal use of force) and determined the party responsible for it (i. e., the aggressor), and only after this party has refused to comply with their decision, does the function of these organs form a preparatory stage in the total procedure of applying the law. This is just the procedure established within a system of collective security as a reaction against an illegal use of force (i. e., an act of aggression). If there are no such organs established, a peaceful settlement of conflicts is possible only on the basis of a voluntary agreement by the parties involved in the conflict. However, for reasons already discussed, such an agreement can rarely be reached.
As has been pointed out, the organ competent to ascertain the existence of a delict and to determine the party responsible for it may or
may not have the character of a tribunal. If it does not have this character, it may be authorized by the legal order to settle the conflicts brought before it by applying not only the existing law, pre-established by custom or legislation, but also other norms, especially principles of political convenience. Such a quasi-judicial organ may have the power only to make recommendations to the parties concerning the settlement of a conflict, so that a conflict can be settled finally only by an agreement of the parties which comply with the recommendations. However, if the decision of the quasi-judicial organ is legally binding upon the parties, it constitutes an individual legal norm, valid only for this particular case. If the organ has the character of a tribunal, it is usually authorized to apply only the existing, i. e., pre-established law. However, it is possible that a legal order may also authorize a tribunal to decide conflicts brought before it by applying norms other than those of the existing law. For example, a tribunal may be authorized to apply principles of justice or equity. This means that the tribunal would be authorized by the existing law to create new law for the case at hand. This principle has the advantage of rendering the legal system more flexible, for it enables the tribunal to adapt the law in each case to those particular circumstances which were not, and often could not have been, foreseen by the legislator.
There can be no doubt of the fact that from the point of view of security it is preferable to have conflicts decided by judicial decisions legally binding upon the parties to the conflict. Furthermore, security is guaranteed to a higher degree if the individual norm, constituted by the judicial decision, is determined, as far as possible, by pre-established general norms of positive law rather than by principles of justice or equity. Since these principles—in contradistinction to the norms of positive law, especially those established by legislation-are not objectively discernible, the power to resolve conflicts of interest according to principles of justice or equity means that the conflict is decided according to the subjective opinion of a judge as to what is just or equitable. Hence, the advantage of flexibility is gained at the expense of security, for there is a higher degree of uncertainty concerning the content of the decision the tribunal will issue, and that means a lower degree of security, than there would be if the tribunal were bound by pre-established general norms of positive law. If these pre-established norms were applied, the decision could be foreseen, at least to a certain extent, by the parties concerned. This is the connection between the collective security guaranteed in general by a legal order and the above mentioned “legal security” (Rechtssicherheit) established by the so-called rule-of-law principle.
It should, however, be kept in mind that the difference between a judicial decision applying pre-established general norms of positive, i. e., customary or statutory law, and a judicial decision applying principles of justice or equity, is not as essential as it is usually assumed to be. The assumption that there exists an essential difference between the two kinds of judicial decision is based on the idea that the judicial application of positive law has a merely declaratory character, whereas the judicial application of principles of justice or equity has a constitutive character, insofar as by the latter a positive obligation and the corresponding right is created or abolished, whereas the former has no such effect. According to this view a judge in deciding a case by applying positive law does not create an obligation and the corresponding right which did not exist, nor does he abolish an obligation and the corresponding right which did exist prior to the decision. In a dispute, either the existence of the fact to which an undisputed rule of law is to be applied or the existence of a rule of law to be applied to an undisputed fact may be disputed. The judicial decision, according to this view, only ends the dispute by ascertaining in an authoritative way either the existence or non-existence of the disputed fact, which implies that the undisputed rule of law is or is not applicable in this case, or by ascertaining the existence or non-existence of the disputed rule of law. Thus the judicial decision transforms, so to speak, disputed law into undisputed and, finally, undisputable law. The fallacy of this doctrine is that the authoritative ascertainment of a disputed fact as well as the ascertainment of a disputed rule of law is not merely a declaratory but a highly constitutive act.
In case a fact is disputed, the judicial decision, ascertaining that the fact has occurred, legally "creates" the fact and consequently constitutes the applicability of the general rule of law referring to the fact. In the sphere of law the fact "exists,” even if in the sphere of nature the fact has not occurred. If a court of last resort declares that an individual has concluded with another individual a contract and has not fulfilled it or that an individual has committed murder, the disputed nonfulfillment of the contract or the commission of murder are legal facts, even if in reality the defendant has not concluded a contract or the accused has not committed the murder. As a "legal" fact, that is, as a fact to which the law attaches certain consequences (duties, rights, sanctions)—the fact, and accordingly its consequences, are "created” by the judicial decision; and it is only as a legal fact that it counts. In case a general rule of law is disputed, because the existence or the meaning of the rule is doubtful, the decision of the court interpreting the legal order or a special rule of that order is not less creative than the authentic and definitive ascertainment of a fact as