The declared purpose of legal study at a university is not to acquire a more or less extensive acquaintance with the law, but training in juridical thinking. No principle is valued so highly by lawyers as this proposition that their science does not consist simply in knowledge of the law. (It may be admitted that the pride with which lawyers have a way of asserting this, especially in the presence of over-curious laymen, sometimes reminds one of the time when "notitia legis" was a secret lore of a few adepts.) In practice, if a lawyer wishes to disprove some assertion and cannot do so by direct reference to the statute, he invariably tries to show that such an assertion cannot be reconciled with the legal method of thinking. Juridical thinking, sometimes called strict juridical thinking, is something the lawyer is supposed to have ever at his right elbow, both as a tool and as a postulate.
Now, what is this thing called juridical thinking? What are its principles and qualities? How is it distinguished from ordinary non-juridical thinking? Is it a distinct sub-species of logic-which on its face is improbable - or is it simply a method specifically adapted to the subject-matter of law.13 People's minds are by no means clear about these questions, and yet juridical thinking is the means of drawing a great many conclusions and inferences, of furnishing arguments, and of deciding numerous lawsuits and controversies. Somebody has said that by virtue of a logical conclusion the ax of the hangman may fall on the head of a man or the doors of the prison close upon another, and the conclusion is held to be logical if it is in accordance with the juridical method of thinking.
13 The significant thing about mere "method" is that its rules are always taken, openly or surreptitiously, from the subject to which they are to be applied. Method is not purely a formal law of thought. The choice of a method of research into a subject-matter is itself the expression of an opinion (in a way a preconceived opinion) regarding the nature of the subject. For instance, by choosing for linguistic or economic investigations either the historical, statistical, organic, or some other method, one betrays at once the point of view from which one looks at these things, and will arrive at different results accordingly.
The prevailing views regarding the nature of juridical thinking oscillate between one extreme and the other. Sometimes, in speaking of lawyers and their trade, one thinks of cold, calculating severity, of rigor and austerity. This has regard to the outside of law, its external and militant functions. To use the expressions of Herbert Spencer, lawyers, like soldiers, are considered as the exodermous tissue of the social organism. The judge is pictured, as described in old German law, as sitting before the people like a fierce lion. It is the notion of "jus militans," of the penal law.
From another standpoint, whence one may enter much deeper into the intimate life of the world of juridical thought, there comes the most prevalent and most frequently encountered notion. According to this, lawyers are endowed with great but rather impractical sagacity. One is reminded of finesse, subtlety, hairsplitting, and such things. These opinions, based principally on experiences with private law, used to find expression in numerous punning sayings against the civilian "perverters of justice," 14 which showed the popular hatred of lawyers. Even to-day there exists a vague fear of legal tricks, backdoor devices, of "Paragraphenreiter" (manipulators of statutory provisions), and of "India rubber provisions." No doubt such notions must be blamed principally on the ignorance of the lay public and certain perversions of juridical thinking such as Jhering (in "Scherz und Ernst in der Jurisprudenz") has castigated with mordant humor. Yet there is usually a kernel of truth in such widely spread popular opinions. This fact will furnish food for thought that other sciences are given to emphasizing that jurisprudence, like logic and mathematics, is a formal science, meaning thereby that the science of law merely treats with the forms of human thought but lacks actuality, i.e. agreement with some real, external object, or at least lacks this to a considerable extent. Differently, however, from logic and mathematics, jurisprudence makes the claim that it has reality, i.e. that it does actually supply a knowledge of positively existing matters. Under these circumstances to call legal science formal implies a charge of sophistical dialectics, and some thinkers (for example Vierkandt) have not been afraid to express that charge.
14 "Jurista nequista," "Juristen bose Christen," etc.