There is a class of courts which is relieved from the consideration of facts, to wit, the courts of third instance. For example, in a civil action in Austria the Supreme Court bases its decisions on the facts as found by the two courts below it (unless the record plainly contradicts such findings). Its own functions are to remedy certain formal faults of procedure that may have occurred, and to reexamine errors in the judgment. Eliminating, as is easily done, cases in the former class, there remain only cases in which the Supreme Court has no business but to test the character of juridical thinking in the courts below. Following the principle laid down in the preceding section, that means the interpretation of the legal rules, the reconstruction of the intention of the legislator, and possibly in addition the employment of analogies.
At this point one may be struck by the fact that the statute itself, in declaring the functions of the Supreme Court, does not employ the terms found in theoretical treatises, such* as "interpretation," "evolution of the law," or "analogy," but uses an expression that is far less definite, to wit, "consideration of questions of law," as if it felt the technical terms mentioned above to be too narrow.83
We shall wonder even more if we cast a look into the reports of Supreme Court decisions. Only in a certain number of these does the court aim at the discovery of the meaning of a statute (it should be remembered that in cases under the general private law customary law is not given effect) by historical investigation, systematic combination, linguistic tests, or any other proper means. In a large number of decisions and opinions we find an entirely different direction of thought. To indicate the limits to which the thoughts of the Supreme Court as found in its decisions frequently extend I mention the following examples. Very often, perhaps one may say as a general thing, the court hesitates by no means to state quite independently that somebody "must have known" some circumstance; that he "obviously knew" that he was in possession unlawfully; that "he acted in bad faith"; that this or the other act of his was negligent; that some other act was arbitrary or malicious or against good faith'; that such and such was the manifest intention of a party to some contract, and much more of that sort. In all such cases we can do nothing with the theoretical limitation given in the preceding section.
83 Austrian Code of Civil Procedure, Sec. 503, line 4.
For the knowledge or lack of knowledge regarding a certain fact, the failure to pay proper attention such as constitutes negligence; good or bad faith, which is a species of knowledge or the lack of it; malice; the intention of a party, - all these things are after all facts, psychical or internal ones to be sure, but still pure facts.84 Whatever else may be the explanation, to find them is assuredly not "reconstruction of the legislative intention," nor interpretation. Well, then, does the Supreme Court persistently exceed its jurisdiction whenever it undertakes independently to find such facts, or is that also a part of "consideration of questions of law," in other words of juridical thinking? In criminal cases we are much stricter in treating phenomena like those mentioned simply as facts. Must we assume, therefore, that the boundaries of juridical thinking are movable? Has the line dividing the facts from the law, between the things to be subsumed and that under which they are to be subsumed, become obliterated in some place or other?
That this is actually the case one is led to believe also in connection with another legal institution, to wit, proof by expert evidence. Anybody with experience in this matter knows how infinitely difficult it is to keep apart the functions of the witness and the judge, how closely interwoven are questions of what is and what ought to be. Whenever an expert witness in questioned regarding, let us say, some engineering device, for instance a safety appliance, we may rest assured that he will state how the appliance ought to be made. In this expression "ought," the element of technical adaptation to purpose and that of some form of social duty are so commingled that they cannot be separated. Hence, the interminable controversies in every trial regarding the admissibility of some expert testimony to which the objection is raised that it encroaches on the functions of court or jury.
84 Cf. Thol, note 76 supra.
At any rate, these considerations seem to point to the conclusion that the discovery of the legislative intention is not all there is to juridical thinking.