A few very simple truths145 compose the kernel of the observations made above. Juridical thinking, in so far as it is not simply the discovery of an actual intention, expressed in the rules of law, together with the subsumption of facts under this intention, has for its object the connection of facts and rules, by projection and analogy. In doing so it employs, or is influenced by, general social phenomena, in brief, the entire fabric of society.146 As a consequence, the same legal rule, without an alteration of its formal validity or its logical content, may, when there has been a change in social structure, be projected sometimes further, sometimes less far, without doing violence to our sense of justice.
Those influences operating on the social structure may be exerted in a great variety of ways: by means of niceties of speech, by intermediate premises appearing self-evident and consequently often not even entering into consciousness, by means of value judgments and tendencies of volition, etc. There is finally such an influence by means of the discovery of internal facts, about which we shall have more to say below.
It would be a very instructive experiment if one could allow some person of eminent logical and juridical gifts but quite unfamiliar with our form of civilization, say for instance a Chinaman, to render decisions in accordance with our laws. The astonishing judgments at which he would arrive would constitute a "demonstratio ad oculos" of the extent to which a judge's subjective attitude towards the life of society contributes a third factor to the judgments he renders, by the side of the logical contents of legal rules and in addition to the various facts to be subsumed. I speak of a third factor in order to indicate that I consider the subject-matters of projection neither as facts nor as rules. That they are not rules would seem to be self-evident. The question of their proper classification is of importance, however, not merely from the standpoint of logical completeness; it actually supplies the keystone without which our entire argument might tumble into ruin.
144 Comp. Decision of Jan. 4, 1899 (GU 446, new series): There can be no execution against the State, merely because the judgment was not paid before the expiration of the statutory term of fourteen days.
145 Please not to overlook that they apply only within certain limits, otherwise this statement will sound far too radical. See infra, section 26.
146 If I were to exaggerate the dynamic form of expression into actual metaphor, I might say: It moves in the direction of least resistance on the line produced by the authority of the legal rule and these social forces.
That is so because, if we could represent ethical, economic, and other ideas at work in the mind of the judge as mere knowledge of facts (let us say facts of which judicial notice is taken), or as nothing but experience, then one could not conceive of a difference between projection and subsumption. Take the most pronounced case of projection, one in which the same rule of law is sometimes projected upon the same state of facts and sometimes not. This one might try to explain in this way: Every fact is to be understood in connection with the whole remaining world of facts. If this environment of facts, e.g. economic conditions or the ethical attitude of society, is changed, then a fact (such as an act or a thing), although apparently identical, has also become different, because it now has an entirely different relation to the surrounding circumstances. It is therefore quite possible for it to be subsumed at one time and not to be subsumed at another, without the necessity of calling to one's aid some special conception such as projection. Before drawing general conclusions, let us look at some illustrations of this manner of understanding the subject.
A landlord forbids a friend of his tenant, who has treated him rudely, to enter the premises. Must the tenant submit to this?147 Any lawyer will answer with a decided negative. Jhering inquires further: "Does it make a difference in this respect what sort of person the third party is? Suppose, for instance, that it is a lewd woman." Now a lawyer will be a little more inclined to find in favor of the landlord. He may consider that the landlord's house would gain a bad reputation if lewd women were permitted to frequent it; he might suffer damage thereby, and such use of the premises would be an abuse contrary to the true intention of the contract of lease.
If this line of argument should prove sufficient to convince the court, it would be, according to the views defended here, a case where the ethical notions of the judge had caused him to place a different valuation on certain facts and consequently to find a different condition of certain internal facts constituting the intention of the parties. However, one might deny this and assert that the reason on which the judgment is based, to wit, the injurious abuse, is simply the finding of facts of which the court will take judicial notice. That this is not the correct view of the matter will appear at once if (leaving aside any difficulties that might arise in a case where the example were drawn from economic considerations) we assume that the tenant takes issue upon the facts. Suppose he should undertake to prove that the people of his town have no qualms about such ethical points, that they are quite obtuse regarding intercourse with prostitutes, and that the landlord will not only not suffer damage but will rather be able to get higher rent for his premises. Now surely there is no doubt that the court will have to reject the offer of such evidence, although possibly it may well be in accordance with the truth. It will reject it, because the reason on which its judgment is based is something more than a mere ascertainment of facts. It flows from an ethical volition, from the ethical attitude of the judge, and the tenant's offer of proof is intended merely to disprove a certain state of fact, but implies an insurrection against prevailing moral principles which it is the duty of the court to defend. Nor would a court receive evidence for or against the proposition that the charge of being an informer actually does lessen the esteem in which the plaintiff is held among his associates. The body of ideas regarding reputation which prevails in society simply postulates that such is the case, and the lessening of a man's reputation when he has turned informer is not merely a fact, it is also a moral principle.