We shall have to admit without qualification that in the past also consideration of the real merits of a cause and a balancing of material as well as legal interests has not been altogether neglected either by legal science or legal practice. Yet a more conscious attempt is now being made to gain for this idea a recognition to which it is entitled and which, as its champions assume, has not heretofore been given to it in proportion to its importance. It is no longer deemed sufficient merely to control and, if necessary, rectify the result gained in the way of logical deduction from legal concepts, by considering the needs of the subject-matter and the reasonableness of the decision, as was laid down by Jhering and Kohler. Instead, we are from the beginning to aim consciously at a practically useful and reasonable result.
So far as heretofore the sociological idea has had a place in the administration of the law at all, it has been employed clandestinely, as it were. The notion has prevailed that the subjective sense of justice, which is the foundation of the sociological idea but which has generally been identified with arbitrary discretion, is altogether unfit to become the positive basis of administering justice. Some have gone so far as to advocate the total elimination of this feeling, and it is by no means improbable that among the judges there are all too many unrevealed adherents of this view. Yet they make no objection to the harmless notion of "equity," which at bottom is identical with the sense of justice, and forget that every decision based on "good faith" is in reality built up on that very feeling.
A result of all this has been that the decisions of the courts were frequently enough, as a matter of fact, in harmony with the substantial justice of the specific case, but the true reasons were relegated to some remote corner in the opinion, so that they appeared like some mere embellishment rather than the basis of the decision which in truth they were.35 This is the "cryptosociologi-cal" method which was first pointed out in the articles cited in the note to the title of this paper, and can easily be traced in a good many reported cases. It consists in the judge having found the true sociological conclusion, but afterwards fitting a scholastic chain of merely formal logic to it as the pretended means of arriving at the result. This is the method that hereafter is to be abandoned.
If we should succeed in evolving a true sociological method such as is probably the ideal of many practitioners,36 out of this cryptosociological one, the words of
35 On this point it is said very truly in "G" 39 (comp. also 69) that according to present practice the decision frequently "reasons backward." Although here also "the goal points the way," yet the decision appears as if it were read out of the statute or the intention of the legislator, while in reality it has been read into the statute. Thus there is in such decisions a sort of hypocrisy, which is frequently enough apparently suspected by the writer of the opinion although he does not realize what the cause of the trouble is. This difficulty we shall have to get rid of. -A very instructive example occurs in RGZ 69, p. 363, which is discussed at length in "G" 65, where it may be read. .As a further example Fuchs gives the two decisions relating to the purchase of a brothel (RGZ 63, p. 179; 69, p. 97),of which the second was manifestly different from the first for no reason except that the second judgment was held to be more in accordance with substantial justice. (See "G" 65.)
36 I may be permitted to quote the interesting expressions of Mr. Stabel, late minister of justice of the Grand Duchy of Baden. He used to exhort young judges in this manner: "When a case is to be decided, you had better at first leave your Code alone. After you understand the facts thoroughly, consider what would be right according to your common sense and the law of nature and equity; then, when you have thoroughly made up your minds on the case, look at your Code, and behold! you will find that the statute fits your own conclusion exactly in almost all cases, and that its intention is nothing but what you intend also." -It is entirely true that by following that method an unbiased judge will find at first glance what is true and right in thousands of cases.
William Stern37 will be realized, who says, very aptly: "The great forward movements of science are not composed of the sudden emergence of new concepts and ideas out of nothingness, but rather consist in this, that familiar experiences, which hitherto were accepted as matters of course, are subjected to criticism, so that their problematical character is recognized and an endeavor to understand them is put in the place of an acquiescence in what is supposed to be self-evident." . Of itself the sociological method does not involve the question whether the courts are bound by the letter of a statute or may, upon occasion, disregard it even where there is no ambiguity. It is therefore of a nature quite distinct from the real school of "free legal decision," which favors such a mode of procedure.38 However, its character is such that it will produce a more independent attitude of the judge in relation to the letter of the statute as compared with the systematic conception which knows of nothing but what is contained in the words as they are written.
I should object decidedly to the term "modernism," which has of late become familiar. This suggests certain currents of thought struggling for greater liberty in regard to Catholic ecclesiastical dogma, which arouse considerable opposition. Therefore this term introduces
37 "Psychologie der individuellen Differenzen," Leipzig 1900, p. 7.
38Fuchs does not belong to these extremists. (See"G" 129;"R&W" 11.) For the rest, I should incline to eliminate, as immaterial to the practical administration of law, the theoretical question whether the courts are to be confined to interpretation of existing law or may, on proper occasions, themselves supply a rule for a case which the formulated law-has not covered. That discussion will merely afford opportunities for renewed scholastic disputes ("G" 75). This is all the more true because the sociological method goes beyond mere interpretation of statutes and requires a balancing of interests even where the statute taken by itself is clear enough. Such is the case, for instance, when we apply concepts like "contra bonos mores," constructive fraud, and similar things. Comp. "G" 131, note: "We are not dealing . . . simply with the interpretation of statutes, but with the very nature of legal justice." into the discussions of juridical science a highly undesirable element. We should avoid carrying the bitterness with which the fight is carried on in the ecclesiastical field into our scientific disputes, or to exacerbate the latter without necessity.