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the essential condition of the application of a general legal rule. The application of a general norm to a concrete case is by its very nature an individualization of this norm. That the judicial decision is legally binding upon the parties means that it is a legal norm, an individual legal norm constituting an individual obligation and the corresponding individual right of the respective parties. This individual legal norm is created by the judicial act.
This becomes particularly evident when the meaning of a general rule of law is disputed. There are almost always two and sometimes even several different interpretations which, from a logical point of view, are equally possible. This means that the existing rule of law is a framework of several different rules. By choosing one of them the law-applying organ excludes the others and thus creates, for the concrete case, a new law. Prior to the decision, the question of law with respect to the dispute could be answered by referring to several rules equally applicable to the case, but after the decision the question can be answered only by referring to one of them, the one chosen by the law-applying organ.
There is, to be sure, a certain difference between a judicial decision by which one of several different interpretations of a pre-existing rule of positive law is chosen and a judicial decision by which a principle of justice or equity—that is, a norm—is applied which cannot be presented as one of several possible interpretations of a pre-existing rule of positive law. However, this difference is not as strongly marked as it seems to be. It is an undeniable fact that under the pretext of interpreting the pre-existing law courts have applied new principles and thus considerably changed the positive law. There is, indeed, only a difference of degree between a judicial decision applying a general norm of pre-established positive law and a judicial decision applying a new principle, whether this new principle is called justice or equity or something else. Even if a tribunal is not expressly authorized to decide cases according to principles of justice or equity, it is hardly possible to restrict its power completely to the application of the existing law, to prevent the tribunal from creating new law, especially if the tribunal is the supreme judicial organ and its decisions are endowed with the force of law—that is, if its decisions are final. The application of the law necessarily presupposes an interpretation of the law to be applied, and even remarkable changes in an existing law may be, and often are, presented merely as interpretations of the law.
4. LEGAL (JUSTICIABLE) AND POLITICAL (NON
JUSTICIABLE) CONFLICTS (DISPUTES)
The difference between settling a conflict by applying a general norm of pre-established law and settling it by having the organ competent to settle a conflict establish a new law has led to the distinction between two kinds of conflicts: legal conflicts and non-legal or political conflicts. “Legal" conflicts are considered to be those conflicts capable of being settled by the application of a general norm of pre-established law, and consequently capable of being settled by tribunals which normally are competent to settle conflicts only by the application of the existing law. "Political" conflicts, on the other hand, are considered to be those conflicts not capable of being settled in this way and consequently, if not settled by the use of force or by voluntary agreement of the parties, capable of being settled by the decision of an organ competent to create a new legal norm valid for the particular case. With respect to the capacity or incapacity of a conflict to be settled by applying pre-established law, legal conflicts are considered justiciable and political conflicts non-justiciable.
This distinction between legal or justiciable and political or nonjusticiable conflicts presupposes the view that there are conflicts which cannot be settled by the application of a general norm of pre-established law because this law does not contain a norm referring to the subject concerned—that is, to the interest with respect to which the parties are in conflict. Hence, according to this view, in this respect there is a gap in the law. If there is a gap—that is, if there is no general legal norm capable of regulating a definite subject-a conflict concerning this subject cannot be settled by the application of the existing law. Consequently, if it cannot be settled by agreement of the parties, it can be settled peacefully only by a new legal norm to be created expressly by the judicial or quasi-judicial organ to cover this subject.
The view that there are conflicts which cannot be settled by applying the law which exists at the time a conflict arises because this law does not contain a general norm referring to the subject of the conflict is erroneous. Whatever the content of a positive legal order, there are only two possibilities with respect to applying it to a conflict. A so-called dispute, i. e., a conflict which does not yet imply the use of force and hence which can still be settled peacefully, consists of one party, the plaintiff, claiming that another party should behave in a certain way, while this other party, the defendant, refuses to so behave. One possibility is that the existing law does contain a norm imposing an obligation upon the defendant to behave
in the way the plaintiff claims. In applying the existing law, then, the conflict would be decided in favor of the plaintiff. The other possibility is that the existing legal order does not contain a norm imposing an obligation upon the defendant to behave in the way the plaintiff claims. This would mean that the defendant would be legally free to behave as he pleases, the plaintiff's claim would have no legal basis, and, in applying the existing law to this case, the conflict would be decided in favor of the defendant, since the claim of the plaintiff would be rejected. There is no third possibility. This is the consequence of the fundamental principle of a positive law that what is not legally forbidden is legally permitted, or—formulated in a positive way–if a subject is not legally obliged to behave in a certain way, he is legally free to behave as he pleases, and this freedom is a legal freedom, a freedom guaranteed by the law. This means that the subject matter of a dispute is regulated by the existing legal order not only if this order contains a general norm obligating one party to behave in a certain way towards the other party with respect to this subject, but also if the legal order does not contain such a norm. If the legal order does not regulate a subject in a positive way, it regulates it in a negative way. Hence, there is no subject which is not regulated-either positively or negatively-by a positive legal order. There are no "gaps” in a positive legal order, or, what amounts to the same, there are no cases where the law-applying organ is forced to declare a non liquet, that is to say, refuse to decide a dispute because there is no general norm applicable to it.ba Under a positive legal order there are no conflicts which, on account of this subject, cannot be decided by the application of existing law and which, in this sense, are not legal or justiciable but political conflicts. The assumption that a positive legal order may not be applicable in a particular dispute because of a gap in this legal order is not correct. What is possible is that the application of the existing law to a concrete case is considered—from one point of view or another—to be not satisfactory, i. e., inequitable or unjust. The basic fact in the distinction between justiciable and non-justiciable conflicts, which is usually presented as a "gap” in the existing law, is really the difference between the positive law as it actually is established and a law as it should be established if it is to conform with equity or justice. What is presented as a logical impossibility is in truth a moral-political insufficiency. Yet the judgment that the positive law, or its application in a concrete case, is inequitable or unjust is a subjective value judgment by which any application of the law may be disapproved. From the point of view of socialism, the entire legal order based on the capitalist principle of private prop
erty is unsatisfactory, inequitable and unjust. The application of the existing law is always unsatisfactory from the point of view of the party whose claim is not confirmed by the decision which applies the law and satisfactory from the point of view of the party in whose favor the dispute is decided. Since, under the law of modern states, tribunals have compulsory jurisdiction and consequently are competent to decide a dispute even if only one party submits the case to the tribunal, and since normally at least one party to a dispute may expect a favorable decision from an application of the existing law, a distinction between justiciable and non-justiciable disputes is of no practical importance.
The situation is different in the case of a primitive legal order under which tribunals are established by agreement of the parties to an existing dispute or, when already established prior to the coming into existence of a dispute, under which tribunals have no compulsory jurisdiction. Under these conditions, it is quite possible that one party, by an agreement with the other party, would be willing to establish a tribunal competent to settle their dispute, or, again by agreement, to submit the dispute to an already established tribunal, but only if this tribunal were authorized by the agreement to settle the dispute not in conformity with the existing law but by a decision in which principles of equity or justice would be applied. In this case, a distinction between disputes the parties want settled in conformity with existing law and disputes the parties want settled in another way would be justified. If it is this difference which is meant by the terms “legal” (justiciable) disputes and political" (non-justiciable) disputes, the distinction is acceptable. When a legislator, aware of the fact that he cannot foresee all
possible circumstances and that consequently the application of the general norms he has established may not be appropriate in some cases, wants to authorize the tribunals not to apply these norms in these cases but to decide them by creating a new and more appropriate norm, he faces the problem of how to formulate the conditions under which the judge should be authorized to act, exceptionally, as a legislator. It is understandable that a legislator would not want to use the formula: if the application of the existing law is not satisfactory. This would be authorization for the judge to set aside the existing law whenever he does not consider this law to be satisfactory. On the other hand, this authorization cannot be restricted to cases in which the legislator considers the application of the existing law not to be satisfactory. Such a restriction would be possible only if the legislator could specify these cases, and if he could specify these cases he would not need to substitute the judge for the legislator. Hence the legislator has no
choice but to allow the judge to decide for himself the question as to whether or not the application of the existing law to a concrete case is satisfactory. In effect, this means that the judge has the power to set aside the existing law and decide a case as legislator whenever he does not consider the application of the existing law to be appropriate, for there are always circumstances which may justify the opinion that the application of the existing law is not appropriate and hence which may lead to the assumption that the legislator had not foreseen them. In order to avoid a formula which expressly confers such an extraordinary power upon a judge, the fiction of gaps in the law is used. The legislator authorizes the judge to act as legislator if the existing law cannot be applied to a concrete case because this law does not contain a general norm applicable to the case. Psychologically, this fiction may have the intended effect of restricting the authority of the judge, for if the judge believes that he is allowed to act as legislator when the law cannot be applied, he will make use of this authorization only in very rare cases.?
That there are gaps in the existing law because there are elements in cases which the lawmaker has not foreseen is a juristic fiction. Its purpose is to justify the fact that legislative power is expressly conferred upon, or actually exercised by, judicial organs. This justification applies particularly within a legal and political system based on the principle of the separation of powers in general and on the principle of the rule-of-law in particular. The power of the judge to act as legislator constitutes a remarkable restriction of these principles. On the other hand, it is the nearest approach to the ideal of a perfectly flexible law. If the judge makes use of this power, his decisions cannot be foreseen. As previously noted, this means that the degree of security afforded by the law is reduced.
5. REMOVAL OF THE CAUSES OF THE ILLEGAL USE OF
A more effective method of preventing an illegal use of force and thus of guaranteeing collective security than the establishment of organs for the peaceful settlement of conflicts is the removal of circumstances which are the causes of these breaches of the peace. This point is stressed particularly in the political doctrine of socialism. Starting from the assumption that the main causes of the disturbance of a social order, the breach of internal peace, are of an economic nature, this doctrine arrives at the conclusion that only a social order which guarantees its subjects the complete satisfaction of their economic needs is able to guarantee peace and that collective security is