In subjecting the present state of theoretical doctrine and of the administration of justice in Germany to critical examination, one may very properly begin with the theory and proceed thence to the practice which has naturally been evolved from theory and is consequently dependent on it. It is also possible to begin with practice itself and go behind it to the underlying theory. If in doing so we should prove, by the analysis of a considerable number of decisions, that they have all been rendered according to a certain method, and if we should further show that this method is based on error, we shall be able to on account of his analysis of the interests the protection of which is the object of law - a man like that has written no works which one may dispose of "by jeers and ridicule." - Nor will the attack by Kohler ("Rechtsphilosophie" [translated in this Series], p. 16) extinguish the importance of Jhering, whose work will be of the greatest benefit in promoting the work that has now begun.
46 It will not do, as I shall show presently, to try to pass it off with the sort of talk frequently heard, that Fuchs is not to be taken seriously on account of his exaggerations, or that a criticism of his criticisms is superfluous.
47 "Das Recht," 1908, p. 259.
48 [Both Geny and Ehrlich are represented in this volume.] find that analogous faults exist in the theoretical doctrine also, and may proceed further to find the causes that bring about such faults.
Thus we have at our disposal a deductive and an inductive method by which to find the sources of error that may possibly exist. The last-named method presents the difficulty of involving necessarily a criticism of and possibly opposition to the character of the decisions rendered by the Imperial Supreme Court, which exercise so great an influence. For an analysis of these decisions is most certain to deal with what is most typical in the present work of the judiciary.49 On the other hand, this mode of procedure has the very considerable advantage that by it we can bring forward tangible results to serve as the basis of further scientific deductions.
This method had never been adopted to the same extent, although it is of special interest to those engaged in practical judicial work, until Fuchs employed it with the conscious intention not to find fault with particular errors or defects, but to prove on the firm foundation of the material so collected that the prevalent method as a whole was erroneous. Thus he gains the great advantage of compelling everybody who would claim scientific standing in this discussion to consider whether the definite cases examined by Fuchs are justly criticized or not.50 I have already stated in another place51 that I do not see how one can avoid admitting frankly the justification of many points raised by Fuchs, and I need not retract anything of what I have said.
49 I have carefully considered whether I ought not to refrain from using this method in order not to weaken the authority of the courts, but arrived at a negative conclusion.
50 Even the judges in the courts below the Imperial Court ought not to refrain from taking part in this scientific task.
51 "Wurttembergische Zeitung fur Rechtspflege und Verwaltung," 1908, p. 467; "Deutsche Richterzeitung," 1909, p. 98.
Yet there is no way of avoiding, in this place, a detailed discussion and to proceed step by step to an analysis of the material submitted by Fuchs.