"It is plain to be seen that nobody can know what his rights are if the courts go on supplementing the statutes in the manner they are doing now." "Anybody unfortunate enough to fall into the clutches of a fanatic for logical deductions and legal fictions will find that a lawsuit is purely a lottery." "It is possible to 'deduce' all sorts of legal results, which may be wholly inconsistent with each other, out of the same state of facts, because the selection of a starting point for the process of deduction is not hindered by any regard for realities." He who says these things is not even that terrible fellow Fuchs, but a German university professor, Ernst Stampe of Greifswald,123 whose good intentions nobody can deny, and who yet demands earnestly that interests be balanced on a sociological basis. To be sure, he must admit that the ears of the practitioners have up to this time been deaf to all such demands. "Many of our practical friends are loath to give up their pleasant walks in the paradise of legal abstractions, where they can pick up without trouble a nosegay of concepts from which to 'deduce' any sort of decision. They decline to taste of the apples from the tree of social knowledge. They murmur when the scales of Justice are to be used in the prosaic business of weighing interests." 124 Well, I believe that the deaf ears of practitioners may be opened to an appeal pronounced with the power of united voices. If Fuchs as the champion has cried too loudly in the turmoil of our age, he may be excused on account of the indifference which all great problems encounter in our day.
123 In his paper on "Unsere Rechts-und Begriffsbildung," Greifswald, 1907, Abel, pp. 6, 37. He names among his precursors, expressing similar ideas: Jhering, Baer, Bulow, Rumelin, Meili, Schlossmann, and especially Heck, and Ehrlich.
124 Says Stampe: "If the Imperial Court were to incline frankly toward this method instead of using its great skill and experience to promote the habit of abstract scholasticism, the most beneficial consequences would soon be apparent."
We cannot gainsay Fuchs when he calls on "all his colleagues at the bar from Konigsberg to Colmar" to be his witnesses for the prevailing uncertainty regarding the outcome of any lawsuit about to be instituted. Such uncertainty is bound to grow up while a method prevails, as we have shown, in our administration of justice, by which, more or less consciously, mere system-building and formalism become paramount. In the course of that method, unjust, inequitable results necessarily flowing from the dialectical method are accepted as matters of course, for formalism and lack of feeling are notoriously allied. In the light of my own experience I cannot hold Fuchs to be wrong when he asserts125: "The latter-day judge is not surprised at any result, on matter how inequitable; on the contrary, especially if he can find a few precedents, he comes to believe that even the most unjust decision is right."
Any one of us judges who has occasion in some matter to venture a prediction regarding the outcome of a lawsuit will, in view of the flood of doubtful points existing to-day, feel himself overwhelmed by a feeling of uncertainty.