Hellwig132 charges the prevailing manner of administering justice with inclining towards formalism and lack of freedom. He charges it with "forgetting frequently that its business is not simply to deal with logical categories or to enforce principles," and demands that the administration of law shall henceforth "satisfy the needs of the present by appreciating fairly the claims of contending interests." He holds that decisions contrary to this principle are contrary to the spirit of the law. "They are unjust. They violate a healthy sense of justice, no matter by what amount of formal acumen they may be defended." That must be called true sociological thought - if Duringer will pardon this expression!
I beg to recall once more Bozi,who shows by truly scientific arguments how the prevailing legal thought of our time, especially in criminal cases, is purely scholastic and formalistic. Thus it has happened that a murderer has escaped all punishment for no reason but that the logical concept of "acquittal" had to be upheld. He had been prosecuted under section 139, Penal Code, for not reporting that a crime was about to be committed, and the court, in dismissing the charge, stated expressly that this was done so that a new prosecution might be instituted for murder. The Imperial Court held that the two crimes, failure to prevent a murder and the murder itself, were both constituted by the same state of facts, and consequently there had already been a prosecution based on the same facts. Certainly the veriest idolatry of logic! An analogous case may be found in the decision where the defendant was held guilty of repeated theft, although the first "conviction" of the defendant, who was then a minor and was reprimanded under section 55, par. 1 of the Penal Code, was admitted to have been erroneous.133 Of course the sacredness of the legal concept of "conviction," as shown by the record, had to be preserved against mere substantial justice!
132 In "Der Tag," nos. 240, 241 (October 23, 24,1909).
Is this idolatry of the letter, is it legal scholasticism or is it not? Fortunate is he who is capable of consoling himself with the adage: "Tout est pour le mieux dans le meilleur du monde." Surely, those who cannot do so deserve to be laughed at. And right here I may once more call to mind the criticism of existing methods by Stampe, referred to above.134