When on January 1, 1900, throughout those parts of Germany where the Roman civil law had prevailed, the Roman law ceased to be in force, and the controversies raging around it disappeared together with the local statutes supplementing it, which frequently were just as hard to interpret, a good many people may have imagined that a new epoch had begun, an epoch in which a code, easy to use, would facilitate the decision of law cases which practical life produces in ever novel forms, by means of a few easily framed pronouncements intelligible to everybody. That hope has not been fulfilled. The number of controversies is legion. The necessary tools of the practitioner include thick commentaries and a flood of published decisions by the highest courts that is rising in an actually menacing manner.3
2 This discussion will be confined to the administration of law in civil cases.
This overproduction of book-lore can hardly be considered a blessing. What is needed for the administration of the law is not a dead learning, nor a cult of the letter, nor excessive reverence for precedent. A reasonable administration of justice depends on paying due regard to actual life and its circumstances. It requires a knowledge of the ideas present in the minds of litigants, presupposes a deep study of the practical ends pursued by individuals in their struggles for existence. It demands a knowledge of the manner of expression and the educational status of the average person, as well as of the manner in which he is likely to conceive right and wrong. Finally it requires some knowledge of the standard by which individuals measure themselves and others in their business and legal relations. About all this the judge will be able to glean information and instruction from commentaries and precedents only in a limited measure. He whose duty it is to administer justice must call to his aid the power of observation and the experience of life that is gained by continuous and open-minded observation. He should be conscious that what he is called upon to oppose to the will of individuals as the will of the State, i.e. the will of the community, must in no case be in reality opposed to the true will of such community.4 Let him bear in mind that each legal controversy is caused, as one might say, by a morbid condition. Before his tribunal appears a section of human life that has been thrown into disorder, and it is his business to rearrange it. Then, like the truly wise physician, he will first of all try to find how he may help those who turn to him in confidence.5
3 The excellent commentary by Staudinger deals with 2385 sections of the Civil Code and 218 sections of the supplementary act of introduction. The official edition of the decisions of the Imperial Supreme Court starts its volume 44 after January 1, 1900, and up to this time has added already 26 additional volumes. Counting 450 pages to an average volume, there are 11,700 pages which, according to present day notions, every judge must have read. Add to these the collections of decisions in JW, in "Recht," and in many other periodicals. The well-known commentaries of Gaupp-Stein on the Code of Civil Procedure and Staub-Stranz on the Commercial Code each have about 2,040 pages in their latest editions.
The judge ought to perform his duty not with his head merely but also with his heart; he must exercise his imagination to place himself vividly into the circumstances of the parties appearing in the various tragedies and comedies on his docket, so that he may realize how they felt when they acted as they did, what ends they may have pursued, and whether such pursuit can be held blameless when considered with a view to the general welfare, Further, he must make clear in his mind what the parties, from their subjective points of view, expect from the government that is to give them what is their due, and whether such expectations are in accord with a true sense of justice or based on unfounded assumptions regarding the nature of their rights. And finally, the judge is to point out the true direction of the sense of justice implanted in all of us, like a magnetic needle, so to speak. True justice cannot be found in cold, logical ratiocinations, nor by a wisdom garnered in dusty books. If it is properly to be administered, the heart will have to be allowed a voice by assisting critical reason and controlling the inferences logic would draw from the statute, of the Code of Civil Procedure and 905 of the Commercial Code, and thousands upon thousands of sections in other statutes, are a sufficient barrier against the arbitrariness of German judges in all ordinary cases at least!
4 Jhering, "Law as a Means to an End," page 220 [in this Series].
5 The judge, in pronouncing a judgment, really performs an act. . . . In all practical relations it is not sufficient to know what the facts are, but it is necessary to do something regarding them. (Jhering, "Zweck im Recht," vol. 2, p. 47.) mitigating their harshness as far as that can be reconciled with the law as it is written, and harmonizing them with the demands of actual life. Administration of justice is "ars aequi et boni," as was said by the Romans more than eighteen hundred years ago. The judge who would think and act rightly in his function of rendering judgment must be able, as far as inelastic provisions of the statute do not prevent him, to discover in the law and make effective that which he himself, if placed in the situation of the parties, would feel to be right and just.