The very important question now presents itself whether the sociological method contains germs capable of such growth that a future scientific harvest may be expected therefrom. The new doctrine will not succeed unless it can be brought into definite, consistent form and unless it can be proven that it is not merely a negation but has a positive) content. What follows is intended to form a contribution toward accomplishing that purpose.
The most determined champion of the new tendency is Ernst Fuchs, and therefore he and his observations will first occupy our attention. Even his opponents, of whom he has not a few, do not deny that Fuchs is gifted with acute critical powers.39 We may surely take his word for it when he says that he does not deal with particular defects but the whole system, the results of which "make his hair stand on end."40 Again, he says that in his researches he finds "an ocean of injustice"41 and that his heart bleeds when he reads decisions of which he cannot approve and in which "justice is wrecked upon) the rock of scholasticism."42 Furthermore, nothing can be found in his book to cast a doubt on the purity of his intentions.43 We must frankly admit, however, that his criticisms, which often drag wholly irrelevant matters like Nietzsche or questions of religion into the argument, frequently go far beyond the proper bounds. Sometimes he is downright unjust, as for instance in his treatment of the Roman law44 and of Jhering.45 It
39 "A very ingenious book," is what Vierhaus said of "R&W" at the Karlsruhe meeting of the German Lawyers' Association (vide "Verhand-lungen des 29. Deutschen Juristentags," vol. 5, p. 579).
40 "G" 63.
41 "G" 64.
42 "G" 113, note 7.
43 It speaks particularly well for him, as an advocate, that he insists, in chapter 6, emphatically on the attorney's duty of absolute truthfulness toward the court.
44 An essay like "G" is hardly the place in which to dispose of the tremendous issues relative to the importance of the Roman law for Germany, Even the most convinced champions of Germanic law do not share the radical views of Fuchs. I need but refer to the observations of Cosack ("Lehrbuch," 5th ed., vol. 1, sect. 4) in which he distributes light and shade with an even hand. In my opinion the Romans will remain for all times the model of a people with a genius for law. The development of legal institutions in Rome proceeded on the one hand without interruption and on the other hand in accordance with a tenacious conservatism that would have been impossible without a national character in which force and ethical principle were mixed in wonderful measure. (Comp. Chamberlain, "Foundations of the Nineteenth Century," vol. 1, chap. 2.) Fuchs himself recognizes that the Romans cannot be held responsible for what their successors did with Roman law. We must admit that the trouble caused by present-day scholasticism is due to the ossification which Roman law underwent in the course of centuries, and I welcome a revolt against what Fuchs very happily stigmatizes as "pandectology." I am at a loss, however, to see what is to be proved by the section from Digest, Tit. de AEdilicio edicto (lib. xxi). The cases there set forth were no doubt entirely appropriate as a guide to practical application at the time when they were compiled. They are still very instructive. We should be fortunate if the "ratio legis" were always exhibited so ingeniously in modern statutes as it is in the excellent section 1 of this title which is built up altogether on a sociological foundation. We must say that Fuchs's onslaught on Roman law constitutes a sort of "attempt by insufficient means."
45 By the side of many passages in which Jhering's views are frankly approved, there is a passage ("G" 108) in which a sentence from "Lawas a Means to an End," p. 150, taken out of its context, furnishes the occasion for a vehement attack on Jhering. But this arrow misses the mark. Jhering had a strong sense of humor and satire. Of course he did not mean to advocate conscious fortune-hunting; but he speaks of the marriage of rich women to high officials as something which is often met with and is caused by social conditions as they actually exist, describing it as a phenomenon of life in society that is useful to the State by permitting it to keep the salaries of officials low. Whoever criticises this passage, intended to be ironical, as being brutal has entirely missed its meaning. -The criticisms leveled against "Law as a Means to an End" seem to me to be entirely mistaken. Jhering, the man who was the first to examine and explain the Roman law, not merely as regards its form and verbal meaning, but regarding its real substantial contents; who (in "Scherz und Ernst") first held the mirror up to scholasticism; who devised the definition of law as "interests protected by the authority of the State," and who is celebrated as the original author of the sociological method would, however be acting unwisely and contrary to the precept that we should prove all things and hold fast to the good, if on account of the obvious exaggerations in many of his ideas and propositions, and the intemperance of his language, we should reject also those sentences in which he calls especially on us judges, in a manner well worth heeding, to search our consciences and examine into the character of our labors, and in which he holds up before us most important incitements for a reforming movement.46
The glory of being the founder of an entirely new doctrine is not claimed by Fuchs. He rather attributes it to Geny, the Frenchman, while Diiringer47 claims this honor for Ehrlich.48