I believe that this detailed reexamination of the cases commented on by Fuchs affords a sufficient basis from which to proceed toward the solution of this question:
Is this simply a matter of individual erroneous decisions among the judgments of the Imperial Court (numbering about 2500 annually), and is the same thing true of the numerous decisions of the lower and intermediate courts, which Fuchs in accordance with the Imperial Court considers erroneous?
To this question the answer must be in the negative. The whole method involved is faulty. This false method is exhibited in all cases in which unsatisfactory and, to use plain terms for the sake of truth, unjust judgments were rendered. In all such cases we can find the invariable characteristic that decisions are based on doubtful arguments drawn from the letter of the statute or an artificial, abstract deduction, while reasonable inferences from the concrete facts, equity, and the subjective sense of justice were neglected.108 For where a mere reading of the opinion, as is the case in not a few of the decisions cited, causes a feeling of annoyance, pain or indignation, one may rest assured invariably that interests entitled to protection have had to give way for lesser interests on the opposite side, or that they have been sacrificed to legal technicalities. In all these cases a more liberal interpretation of the statute, the omission of unreal, abstract argumentation, the weighing of interests in accordance with the manner in which the business world looks at these things, and lower value put on technicalities would have given the victory to the just claims of the parties.
106 This is called one of the shining examples of how the Imperial Court administers the law in: Schneider, "Die richterliche Ermittlung des Sachverhalts," 1888, p. 109.
107 The Imperial Court has "insisted on this constantly in a most meritorious and intelligent manner"; R. Schmidt, "Lehrbuch des Zi-vilprozesses," Sec. 72, ii, sub-section 2.
108 Comp. below, sec. 22.
Thus we must recognize that it is vain to hope that mere abstract knowledge of laws and statutes and their purely abstract application will suffice. In that way we shall miss the true mark, and substantial justice will be wounded a thousand times. Nothing can come of it but fatal error repeated again and again with a certain appearance of right.109
It follows that the essential element in the administration of justice is to be sought in a place different from that in which it has been looked for in the past. The very kernel of the work of the judiciary lies in the just government of the real interests and possessions of human beings. The scholastic and dialectical method prevailing to-day, attempting as it does to draw the decision as logical conclusion from the legal rule, by means of verbal interpretation supplemented by purely verbal inferences, without proper weighing of conflicting interests and without considering whether the result will be reasonable or not, is decidedly wrong. Unless we realize that it is the business of courts to serve the interests of actual life and to adapt their judgments to them, instead of forcing the facts into a bed of Procrustes according to some schematic formula, we are on the wrong road, and we shall err fatally in imagining that we can ever obtain certainty of the law in this manner.
109 Fuchs may rightfully claim the merit of having given brilliant proof of this by his inductive method.