Besides the formalism which would eliminate the sense of justice and simply subsume the matter to be considered under some statutory provision, another factor plays its part in exerting a considerable influence on the formalistic method. That is the theoretical conception of a judgment in civil actions.
Commentators on procedure usually have little to tell us about the nature of a judgment, except that a judgment is the "final decision rendered by the court after an obligatory oral trial." The prevalent idea regarding the substantial nature of a judgment in a civil action is that the judge has to "bring the case under the statute," to subsume it. Following Savigny, we are taught that a judgment is a syllogism wherein the legal rule is the major premise, the facts the minor premise, the decision the concluding member. In practice, at least, we have never progressed beyond this point. The idea seems to be: if we have established the facts and found the proper rule, the decision will spring up of itself, so to speak.
A judgment is conceived to be declaratory in its nature. According to Gaupp-Stein,118 a judgment is "a declaration stating what is the law as applied to a state of facts and the condition of an action," and it is said to be "but seldom" that the "decision is at the same time imperative as to what shall be the legal relation of the parties-meaning, in the latter case, so-called constitutive actions [i.e., actions in which a judgment is sought that merely declares what the duty of the defendant is toward the plaintiff as, for instance, actions simply for an accounting, for restoration of marital rights, etc.].
Now here, in my opinion, we have before us one of the fundamental troubles under which our system of administering justice is laboring. The assumption that-the decision is, in its essential nature, equivalent to a logical conclusion is erroneous.119 The decision and judgment is not merely a logical conclusion; it is also an exercise of the power of the State in the interest of keeping the peace under the law. The judicial determination has under all circumstances the characteristics of an act of will on the part of the State and consequently it must necessarily be a command, for the reason that one cannot conceive of acts of will under the authority of the State except under the form of commands. This is clearly seen by Fuchs also: "The traditional conception is that the judge first formulates the major premise from the statute and its interpretative materials; next he subsumes the state of facts under this rule, and finally he deduces his decision as the logical conclusion. If we recognize the lack of truth and reality in this scholastic tradition, we have comprehended the whole essence of the inductive method in the administration of law."
However, by this very conception of the nature of decision and judgment which we have characterized as being erroneous, one is scarcely less than compelled to rely, in a manner not justified by reason, on the dialectical method. It is very different when one conceives of judicial determination as a command or an act of will by the State. That cuts off at once the possibility of deducing this will dialectically from the rule of law. In this way, however, the importance of the formulated rule is restricted, without further difficulty, to the limits imposed by the nature of the subject. The judge, in trying to find the correct decisions, can no longer start from the idea that somehow there is concealed in the facts of the case a rule the counterpart of which he must find in the provisions of his Code. He will feel instead that his task is, by an act of will; to regulate the exercise of the mutual rights of the parties and to make a just distribution of the property in question. He will remember that he is there to help the parties to achieve the purposes for which their various transactions were undertaken, so far as these purposes are not disapproved by the law, and to give to parties whose rights have been invaded without any act of their own such protection as they are entitled to in the way of a reasonable and just regulation of their interests. The first thing required, therefore, is to direct the will of the judge to the reasonable and just result within the limits of the positive rule of law.120
119 Comp. Bulow, "Gesetz und Richteramt," Leipzig, 1885, pp. 5 seq.; Gmelin, "Die Vollstreckbarkeit," Tubingen, 1898, p. 48. See also "R&W" 81, where judgments are defined as "authoritative categorical declarations"; and "G" 35.