My own discussion of the decisions criticized in Fuchs's books has shown, no doubt to the great joy of adherents of the old school, that differences of opinion regarding particular cases are quite possible even from the sociological point of view. It is true that "Even under the sociological method decisions will not be produced automatically." In the first place, however, it is fair to assume that in innumerable cases it will be easier to reconcile the opinions of the members of a court if the whole bench tries earnestly to put into effect what is equitable and just than if they indulge in fruitless wrangling about learned concepts. "Between different points of view regarding the act of a party, between differing appreciations of the good faith and merits of an action, it is possible to find a middle line. The severity of one judge may be tempered by the fairness and kindness of another. In proportion as a judgment is to be based on legal tact, a sense of morality and the instinct of long experience, each judge will become more tolerant of the differing opinion of his neighbor on the bench. Conversely, per-tinacious, stubborn maintaining of one's own opinion is natural where one has arrived at his results purely by a reasoning process, so that any concession would involve the admission that the reasoning of the other was better! than one's own." Again, we find a powerful ally in Mendelssohn-Bartholdy, who is the author of the following:126 "In the sociological contest, the most reasonable, respectable, and appropriate solution will prevail in most instances, while in a pandectological disputation the most unreasonable and impractical solution has just about an even chance with its opposite." It is perhaps not going too far if one asserts, in view of the positive material submitted, that it is henceforth impossible successfully to contradict the above statement.
125 "G" p. 159.
We may assume as certain that definite guiding lines will gradually develop as the sociological method becomes more familiar. My own opinions in that respect I may briefly state as follows: We should get to the point where the proper task of a judge is generally considered to be the just distribution of property and rights among the parties, and where it is no longer held sufficient if the decision appears as a formally correct logical deduction from the statute. We should rather demand that the decision will stand as a just judgment, both "in foro interno" of the judge, and in the estimation of the persons concerned.127
126 In: "Das Imperium des Richters," p. 115, Strassburg, 1908, Trubner.
The idea that decisions based on purely dialectical argumentation have the alleged quality of logical necessity is a figment of the imagination. The writer himself used to believe this, but I now renounce any such opinion. We shall have to get along without the pretense that our decisions are logical necessities. Judges should be as independent as possible both of precedents with the deductions therefrom, and of the artificial deductions of jurists.