This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
Because the members of the German judiciary cherish a tradition of great reverence for commentaries and collections of decisions, they have on the whole rested in the quiet belief that everything is in the best of order; that under the guidance of the new code, legal science and the art of interpretation are flourishing and promise to do so in even greater measure in the future. Now and then, some practitioner may have been troubled by a scruple whether one could speak of a healthy condition when questions simple on their face, such as the daily grist of the courts produces them, cannot be solved except by a vast expenditure of reasoning and analysis of prior decisions and the contradictory opinions of authors. We may use as illustrations questions arising with regard to the nature of actions for rescission of contracts of sale and the necessity of specific demand for acceptance of the goods by the vendor. In regard to the latter point, even Staub, who is ordinarily very practical, advocated a formal demand,7 but subsequently8 the Imperial Supreme Court decided in the way which alone has practical sense, just as it has done regarding the true nature of the action for rescission.9 However, when we try to see what the result of the contest raging about these questions really amounts to, all we can say after we have drawn the kernel out of the chestnut is this: to require, in cases of rescission, that the fact of rescission must first be established in the judgment before the legal consequences of such an act can be enforced must needs force us into useless, nugatory and therefore objectionable circumlocution. The second controversy would never have arisen at all if the question had been asked whether there could be any sense in compelling an honest vendor, whose vendee has definitely refused to accept the goods, to make a further demand and thereby expose himself to being snubbed. For according to the feeling among business men the vendee might well object to having his definite declaration of intention treated as if he had not meant it.
As a matter of fact, the reasons given in the Supreme Court decisions on these two questions amount to nothing more than a statement of the points given above.10 At
7 "Kommentar zum HGB," 6th and 7th ed.. notes 75 and 92 in the excursus regarding section 374.
8 RGZ 51, p. 350, and passim.
9 RGZ 58, p. 424.
10 RGZ 51, p. 350, puts the matter very pertinently by saying that "we cannot assume that in legal intercourse purposeless and superfluous acts are required." - In the same volume it is held that a clerk who has been discharged without cause need not expressly declare his willingness to serve. (Romer, in DJZ (1903), p. 340.) least these two points are the only ones of practical importance. All the rest is very learned, but superfluous, all the more superfluous because nobody can doubt that from all these so-called scientific reasons the opposite conclusion might have been drawn quite as well.
As we said above, for some time it has happened now and then that some judge began to doubt, in view of this and other cases, whether we had really touched such glorious heights of perfection. Then a champion arose to gather up the scattered doubts, to condense and intensify them, and in eloquent language to announce as the result of acute critical analysis something like the following:
"There is something wrong about our entire system. The judgments rendered by our courts are founded on a method of scholastic formalism which, in the last analysis, is caused by an erroneous method of training in school and university. The true kernel of the judicial function, which should consist of a balancing of the interests of the contending parties-in other words, the sociological factor-is lost sight of or at best admitted in a shamefaced manner as a trifling auxiliary. We must see to it that the judicial bench shall foster a sociological development of law, so that the opposing interests of parties may be reconciled according as one or the other interest has the better right on its side. That is the only manner of administering justice which is promotive of good and in accordance with the needs of the litigating public. If courts proceeded in such a way, we could again hope that the dry branch of our administration of law might flourish once more and we might hear nothing further of the reputation of judges for lacking a knowledge of actual life."