Duringer131 is of a very different opinion. He has no use for those who are imposed upon by phrases such as "sociological administration of justice," or "cryptosociological." Well, I surmise that Hedemann, myself, and a good many other judges, whose eyes were opened by Fuchs regarding
130 "Archiv f. burgerliches Recht," vol. 34, pp. 116 seq. 131 "Das Recht," 1908.
"cryptosociology" and similar monstrosities, will console each other for having lost Mr. Duringer's favor. "Sola-men miseris socios habuisse malorum." Where Fuchs refers to the assent, he has found from many quarters Duringer speaks of "a judge here and there of some district court or court of appeals" who is "delighted to see some other court of appeals or the Imperial Supreme Court catching it." Conscious that I myself do not harbor such malicious feelings, I am not capable of assuming that they inspire other judges who have the same scientific opinions as I, unless I see proof that such feelings exist. Let us wait and see whether the public will like the way in which Duringer, although expressing his appreciation of the idealistic and noble intentions of his antagonist, descends to personalities by punning on his name (Fuchs=fox). Thus he calls him a "cunning fox," or speaks of "the fox preaching to the ducks." Again he speaks of him as "the little high priest of free decision from Karlsruhe," and as "the clown with all the modern notions." In one place he does not even scorn to attack him because he is a Jew. I doubt whether he will gain applause that way, especially as so capable a critic as Vierhaus in the article cited has already suggested that it would be better if this part of Diiringer's paper had never been printed.
As to the merits, Duringer's polemics do not carry conviction. He has omitted the preliminary labor of reexamining the decisions of the highest court which Fuchs has criticized because, as he says, "he is not inclined and has not the time unofficially to wrangle about the correct decision of judicial cases." Although he has to make admissions on nearly every page, yet, according to Duringer, there is really no need of doing anything except to sing the praises of things as they are. "The most important business of the judge is to adapt the legal rule to actual life," he says, "and as a matter of fact, that is what is being done." If that is so, we need add nothing but "Quod erat demonstrandum."
According to Duringer "the greatest of sociologists" is the legislator, and yet it would seem to be indisputably true that large portions of the Civil Code are nothing but scholastic and deductive. The one little drop of sociological oil with which, as it is said, the Code was anointed hardly suffices. To be sure, Duringer does not approve of two of the worst decisions, the case relating to the will of the widow Schmidt, and the other, commented on in the above discussion. This being so we may assume that a good many other decisions would not have come up to Duringer's standard of justice any more than to that of other critics if he had not disdained to "wrangle" about the correctness of the decisions analyzed by Fuchs. Finally, no matter how he may try to justify himself, Duringer's notorious question, "What has sympathy to do with the work of the highest court of appeal?" will be remembered by scientific investigators as a demonstration how lawyers of the school at present in the ascendancy care everything for formal logic and nothing for the sense of justice, and how they are trying consciously to banish the judge's subjective sense of justice from the court room on the plea that it leads to uncertainty of the law.
From what I have said here, and for that matter from what I have published before, it would seem to be clear that Duringer's appeal to the "esprit de corps" of the German judges as against the attacks of Fuchs will appear to me and a good many others as nothing lessthandemand-ing "a sacrifice of the intellect." I repeat that every judge will find a reexamination of the Supreme Court decisions criticized by Fuchs exceedingly instructive and productive of good by widening his outlook immensely.