This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The task remains of surveying the reception hitherto accorded to the new ideas.
In an ingeniously and cleverly written article recently published,128 Vierhaus attempts to describe the school of free legal decision as one of those symptomatic manifestations of the time which, whenever they find some defect in an existing institution, at once reject it utterly without supplementing their negative criticisms by positive proposals. He is sufficiently acute and fair to recognize, behind what he calls "the grotesque Capuchin harangues" of Fuchs, "the eye of a sharp observer" and "the countenance of a warm idealist, for whom true justice is a matter of the heart." Vierhaus thinks that Fuchs has transgressed the due bounds which even the most earnest controversialist should observe, but he deems the substance to be of more importance than the form. Superficially, he seems to take about the same point of view as we do here, but substantially he differs in all respects. As I view the matter, it is by no means true that the sociological method lacks a positive content, and I cannot agree with the prevailing opinion which Vierhaus also adopts, that the whole quarrel is merely about particular legal provisions, particular juridical doctrines, particular decisions of the courts.
127 "G" 73, 236.
128 In DJZ 1909, p. 1169.
Vierhaus may be taken for a typical representative of the theory of subsumption, for according to him "the legal concept and the legal rule are to be laid upon the state of facts, so to speak, in order to see how far they cover each other"; and further he says that "the function of the judge is at an end when he has correctly subsumed the correctly ascertained facts under the correct rule," while in his opinion "a legal science operating with an indefinite sense of justice not capable of expression in logical terms would not deserve the name of a science." We, however, are of the opinion that we dare no longer refuse a place in the administration of law to the subjective sense of justice, even if perhaps it is "hard to express logically," by the side of the science of logical concepts. By the way, what may the which Vierhaus also speaks of, be if it is not this very feeling? We shall try to discover whether it may not be possible to find firm bottom for this sense of justice in certain "realities" (as we have attempted to explain above).129 Reading in Vierhaus's article how, as a result of the free decision doctrine, the judge is to be helplessly exposed to the influences of economic, social, and political controversies, instead of being protected by "the brazen shield of the law," one is indeed tempted to reject the new theories. However, it cannot be denied that even to-day the judge cannot really escape the necessity of making up his own mind regarding certain economic questions, as for instance the propriety of "cartels," boycotts, and the like. That being so, it would seem better to face this necessity with conscious frankness than to hide behind insincere scholastic arguments.
129 Sub tit. iii.
Vierhaus himself advocates the balancing of interests; he fails to realize, however, that this point of view cannot possibly be reconciled with what he calls "absolutely the only possible method of jurisprudence, the deductive method which has been tested during two centuries." For according to this method the letter of the statute must be enforced, according to the logic of concept and deduction, even where a proper balancing of interests cries out for the opposite decision. We may regret it, but we must not obey Vierhaus's summons to cease from attacking the deductive method of administering justice until everybody concedes that the balancing of interests deserves the preponderance.
It is very pleasant to see how Hedemann130 treats without bias the numerous blemishes in the form of Fuchs's comments. We cannot deny that this critic is justified in calling attention to a certain onesidedness, and the lack of concise, systematic presentation of the views stated by Fuchs. He is also right in noting that Fuchs has failed to build up the positive side of his argument. Yet, the negative labors had to come first. Doubt and criticism are the forerunners of knowledge. Hedemann considers a particular merit of Fuchs his showing how there is a hidden sociological element in the traditional form of judicial work, and says that on the negative side Fuchs has done "most excellent" work, that "his labors will produce rich and lasting fruit."