This is, in a summary way, the general trend of those opinions which Ernst Fuchs, in various books and articles,11 has published and defended,not without encountering vehement contradiction and opposition.
If one starts with an inclination toward a conception of the judicial function such as was outlined above, he will not find it difficult to approve of the new doctrine. In so far as existing conditions are assailed thereby, this doctrine will of course first of all have to prove its right to exist by showing that the defects it charges against the administration of justice at the present day actually exist and are caused by judicial methods. Now it is fairly easy to test the correctness of the propositions maintained by Fuchs, because they are supported by a considerable number of criticisms of recent decisions by the Imperial Supreme Court, criticisms which, we must admit, are decidedly trenchant and bitter. We cannot follow these criticisms into every detail and thus, as one might say, effect a revision by a tribunal of the fifth instance. We may, however, warmly recommend to every judge their serious study. In this place we can give but a few observations and show by a few illustrations how much of these criticisms will stand the test of an independent examination.12