By Johann Georg Gmelin1
I. On the Art of Administering Justice
Sec. 1. CODES AND JUDICIAL FUNCTIONS. - Sec. 2. STATUTES AND JUSTICE. - Sec. 3. THE DEMAND FOR REFORM. - Sec. 4. THE WRITINGS OF ERNST FUCHS. - Sec. 5. CRITICISM OF SUPREME COURT DECISIONS. - Sec. 6. MORE DECISIONS CRITICIZED. - Sec. 7. A FALSE METHOD. - Sec. 8. THE BETTER METHOD. - Sec. 9. CONCLUSION.
1 [Justice of the Court of Appeals at Stuttgart. This translation is of his collection of essays under the original title "Quousque" (omitting the first and third essays), Hanover, 1910, Helwingsche Verlagsbuch-handlung. The translation is by Ernest Bruncken.]
The [four] papers here collected [two translated] are intended, in connection with the writings of Ernst Fuchs, of Karlsruhe, to call attention to some of the rocks toward which our administration of justice is steering on account of its excessive formalism and the scholastic and dialectical method on which that formalism is based.
How long is this idolatry of technicalities to last? Where will it carry us? What can we put in its place? These are questions which every judge ought to ponder.
The first two publications exhibit the small beginnings of what is now with me a settled conviction. Gradually these grew to such an extent that in the fourth paper, a sketch of which was originally published in "Wurttembergische Zeitschrift fur Rechtspflege und Verwal-tung," 1910, pp. 1 et seq., I could make the attempt to set forth the positive side of the sociological method. The third essay, on the "Lay Element in the Criminal Courts" is somewhat loosely connected with the general subject, yet here also the principal idea is the same as in the other papers, to wit: antagonism to the extreme technicalization of justice.
There is much still to be done in the way of studying the more profound aspects of the sociological method, and there is much material still to be collected. Let there be many earnest collaborators in the work!
Gmelin. Stuttgart, end of January, 1910.
Sec. 10. law and sociology. - Sec. 11. mere logical deduction not a sufficient method. - Sec. 12. the sociological method. - Sec. 13. criticism of supreme court decisions. - Sec. 14. analysis of criticisms made by fuchs. - Sec. 15. further criticisms by fuchs.-Sec. 16. a difficult case. - Sec. 17. further criticisms analyzed. - Sec. 18. the subject continued. - Sec. 19. the supreme court sometimes sociologically correct. - Sec. 20. individual errors or false method? -Sec. 21. the prevailing method not working properly. - Sec. 22. the sense of justice. - Sec. 23. the theoretical conception of judgment. - Sec. 24. the balancing of interests. - Sec. 25. the need of a change in attitude. - Sec. 26. objections to the new method. - Sec. 27. some objections refuted. -Sec. 28. some opinions regarding the new method. -Sec. 29. views of duringer. - Sec. 30. views of other law writers. - Sec. 31. the subject continued. -Sec. 32. conclusion.