Thus we have come to an additional peculiarity of juridical thinking It is bound to appear strictly logical in form, even where in the nature of things it cannot really be so. This is caused by a persistent tendency peculiar to lawyers, of overestimating the degree and extent of certainty arrived at both regarding the contents of the legal rule and the state of facts.
It has long been recognized with regard to the facts, especially the external facts, making up the "res gestae" of a case, that legal certainty regarding a fact is satisfied with less than complete certainty and yet treats the facts as if they were entirely certain. The same is true of all other branches of juridical thinking. The sagacity of a lawyer is shown especially in the finding of the proper facts on which a judgment may be based (the finding of "indicia"). As regards the use and interconnection of such facts, juridical thinking must be called bold rather than cautious or exact. The social want produces self-deceptions, assumptions that possibilities are proofs, suggestions argument; it produces inferences that are not altogether cogent in logic, briefly it leads to representing the greater probability as certainty.
Now it should not be objected that other sciences, the natural sciences and even mathematics, will work with probabilities where certainty cannot be attained, and that accordingly this is not a peculiarity of juridical thinking. In those other sciences, the factor of probability, the possibility of error, is never lost sight of; the coefficient of uncertainty is carried along into the conclusions from uncertain premises. The lawyer, however, is obliged to omit it, for a judgment must not be based on hypothetical facts,187 nor on hypotheses regarding the contents of the law. It is very interesting to see how these special conditions have generated a special style, a special manner of expression.
The language of decisions or legal arguments is rarely simple and uninvolved. The statement of a fact is more frequently made by cautious circumlocution than by direct assertion. Flowers of expression like the following have grown up in the garden of jurisprudence and are the specific property of the lawyer: "We must assume as proven"; "this assertion cannot be taken as justified"; "it appears to be without foundation"; "we cannot justly doubt"; "the conclusion is therefore justified," etc. Such phrases serve to render the difference between the real degree of probability and that required for legal purposes, or between such probability and the cogency of the inference drawn, as inconspicuous as possible. Usually they amount to this, that in place of direct assertion we put an obligation to believe, and this modifying factor is afterwards disregarded. No small part of the training of a practical lawyer consists in becoming accustomed to such forms of expression and processes of thought.
187 That is the reason why those legal institutions have been found inconsistent with juridical thinking, and are therefore likely to disappear, which made an attempt to take into account the uncertainty of establishing the facts. Such are verdicts of "not proven,"or mitigation of punishment on account of doubt regarding the facts.
What, then, is meant by juridical truth? For nobody will deny that there is such a thing, that among several decisions, none of which may perhaps be a strictly logical consequence of a legal rule, or rules, one is erroneous and the other correct.
Legal truth is discovered every day and every hour, but its peculiar characteristic is that it does not necessarily coincide with historical nor with psychological nor with any other sort of empirical truth, notwithstanding the positivistic tendency dominant in jurisprudence. It is a resultant from a large variety of components. Among these the command contained in the law may be the most important but by no means the only one. Furthermore, on account of the theoretical (see supra) as well as practical impossibility of comprehending all components as calculable quantities and of taking them into account as such, legal truth must often be content with the greater social probability without, for that reason, losing its formal character of juridical truth. The above proposition cannot, of course, be employed as a criterion of juridical truth, but it may be used to justify the further consequence that there is but one way of bridging the distance between some empirical truth and whatever may be the greater social probability in a given case. Whenever such an operation is necessary it can only be done by means of dialectical logic. It is evident, therefore, that to this extent a rhetorical and dialectical element is inherent in juridical thinking.188 It is not
188 I have before me the "Juristische Blatter" for February 23, 1902. An article raises the question whether one partnership may be a member of another partnership. The writer admits at first that section 85 of the Commercial Code deals with physical persons only and that when the presumed, however, that the lawyer is conscious of this particular function of his intellect. It is precisely the naturalness, the apparent self-evident necessity, that constitutes the convincing power of those components that do not enter into the conscious reasoning (these components are what we have called the subject-matter of projection). Among the three successive courts that may deal with a case, and the attorneys arguing for different judgments, ordinarily each is convinced of the indisputable certainty of his argumentation.
On the other hand, these subconscious effects of components not consciously taken into account, such as ethical sentiments, etc., are the reason why legal controversies so often seem to proceed at cross-purposes and why, with an undisputed state of facts, judgments are so often in doubt and can rarely be foreseen with certainty.