"What we are striving for is that the courts may find the right judgment on the merits by practical sense and true comprehension of the facts, instead of the correct logical deduction by the help of scholastic subtleties."-Ernst Fuchs, "Wurttembergische Zeitung fur Rechtspflege und Vervvaltung," 1909, p. 5.
Our first question shall be: Are we justified in claiming that there is a modern tendency in the law, so markedly distinct by its characteristics from what has been customary, that we are able and compelled to attribute to it independent importance and a specific appellation?
As a matter of fact I do believe that the social ideas of our time, and the new science of sociology built up on them, have made their way even into that most conservative of all provinces of intellectual activity, the law. At the present time, the method of legal science is, on the whole, that of the system-builder, and the method of administering the law is that of enforcing a statute, if I may use that expression. All effort is directed toward "bringing the case within the statute," in accordance with the authority of the State. In keeping with this method, we are tracking the expressed intention of the legislator into its most remote hiding-places.32 And when that has been done we apply, by a chain of deductions, the rules that may be plainly in existence, or if
31 I received the impetus to write this essay from a request by the editor of the "Wurttembergische Zeitschrift fur Rechtspflege und Verwaltung," to review the book by Ernst Fuchs, entitled "Die Gemein-gefahrlichkeit der konstruktiven Jurisprudenz" (Karlsruhe, 1909; Braun). From this review (in the year 1910, pp. 1 et seq.) the present paper has been evolved. The above book will hereafter be cited as "G," followed by the page numbers. The work by the same author, "Recht und Wahr-heit in der heutigen Justiz" (Berlin, 1908, Heyman), will be cited as "R&W," followed by the page numbers.
32 "All that is needed now is to put the draftsmen on oath to testify what they had in mind, or what they would have thought about a particular case if they had thought of it at all." ("G" 11.) necessary discovered in the dialectic manner, to the facts of the case, with the implied assumption that the State requires the application of the statute equally to every state of facts that can possibly arise.
Regarding these principles we must say generally, first of all, that they cannot but lead to a mere formalistic administration of the law, so that we must needs look for some other source from which to derive the means of supplementing and vivifying our labors. Such a source we may find, agreeably to certain modern conceptions, in the recognition that the kernel of all legal contentions is a dispute regarding certain interests which the law protects, be it interests of a pecuniary, be it such of an ideal nature. Accordingly, the task of judicial determination should be to understand the merits of such conflicts of interests, to find out their essential nature, and to reconcile them by balancing them against each other in the manner of an unbiased arbitrator who stands above the parties and bears in mind both the advantage of the contending individuals and the general welfare. Individual advantage, because that is what the parties are seeking to protect; the general welfare, because that enters into the problem not merely on account of the interest the public has in the certainty of justice, i.e. in the equal adjudication of equal cases, but also because the public is interested in having each case determined justly. For each case must be considered the type of a series of similar cases. The method here outlined, by which it is sought to substitute for the primary import ance of logical concepts the importance of a balancing of real interests, we may call the sociological method Sociology, to be sure, is a name given to a science which attempts to investigate the laws by which society exists and the various social groups are related to each other. Yet we need not hesitate to apply the name to a scientific method which finds its models in the science of sociology, and which, in the field of private law, deals with the investigation of contending interests. For are not these, to a great extent,the interests of struggling social groups?33 The sociological science of private law, then, would be that science which deals with those legal interests falling under the domain of private law, and with the correlative values of such interests. Sociological administration of justice would be that manner of administering the law which, in pursuance of the above idea, lays the greatest stress in adjudicating cases on the importance of the real interests involved, and tries to arrive at the correct decision from this point of view. It does not follow from this, however, either that the positive statute is to be disregarded or that systematic legal science, which is well pictured as the stout backbone of the law, need be thrown aside. Yet if it is true that in consequence of the fact that the sociological method ascribes greater importance to the real interests involved in each separate case, and aims primarily at a decision on the basis of the real merits, it is likely that the results of adjudication, taken as a whole, will show a different aspect. The ideal method of administering justice, as has been aptly remarked by Sinzheimer,34 will at last be attained by a mutual supplementation and interpenetra-tion of systematic legal science and the fundamental ideas of sociology. In doing so sociology needs systematic science, which prepares the proper juridical form; but on the other hand we must acknowledge that pure systematic jurisprudence, without the assistance of sociological principles, does not suffice to enlighten us regarding the actual life which is the subject-matter of legal activities. For that reason mere systematic jurisprudence by itself should no longer be recognized as a proper basis for the administration of justice.
33 Employers and employed, producers and consumers (or vendors and purchasers), lessors and lessees, those seeking employment and the agents who try to procure' it, and so forth.
34 "Die soziologische Methode in der Privatrechtswissenschaft," Munich, 1909, Rieger.