This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
These fundamental ideas of justice, these legal principles, which the judge applies when he decides according to the method of "liberty of judicial decision,"-how may they be ascertained?
In the sciences dealing with the things of the mind, the historical method alone can lead us in the ways of
22 This is in effect an approximation to the view of Stammler ("Die Lehre von dem richtigen Rechte"), who practically, although approaching from a different direction, assumes a "Law of Nature with variable content."
23 The correct comprehension of the subject is implied by describing "freedom of decision" as adjudication according to equity. This assumes that equity (aequitas) is understood as a part of legal justice, and a decision according to equity as a legal judgment. Compare Brie, "Billigkeit und Recht, mit besonderer Beriicksichtigung der Freirechts-bewegung," in Archiv ftir Rechts- und Wirtschaftsphilosophie, vol. 3, 1910, pp. 526-534, 534. In this connection, Brie holds the court authorized to supply rules for unprovided cases only.-Reichel, "Erganzungen zum Referat Brie," ibidem, pp. 534 et seq., 535. To be sure, Reichel here also advocates "teleological decisions."
On the meaning of "aequitas" compare my "System der Rechts-und Wirtschaftsphilosophie," vol. 2, pp. 103-108, and the literature there cited [translated in vol. i of the present Series]. Ibidem, page 104:" 'Summum jus, summainjuria,' in this phrase the idea of 'aequitas' is expressed." progress. This is due to the nature of civilization. Here there is everywhere a continuous flow of evolution. A new development is not altogether new; it does not arise (as it were) out of nothing, but rather it carries forward and gradually changes what already exists. There are additions and alterations, but no radically new creations. The beginnings of an historical deduction of law and the State were to be found already in the political and legal doctrine of the Law of Nature school. The study of historical development, however, was nowhere attempted seriously; historical induction was rather used as a sort of a screen behind which the a priori notions of legal philosophers, who looked at the historical material with preconceived opinions, were ill-concealed. One cannot, to be sure, reasonably blame the writers of that period for their insufficient treatment of history. For in those days history was still a matter of polite literature, not of scientific investigation. The ensuing "Historical School" entered upon the true path when it postulated the historical basis; but it never got beyond the first elements. Its activities were supplanted by the new science of sociology. The merit of sociology is twofold: it called attention to the significance of the social group for the rise and development of law; and further, by making society the central point of law and the State, it impressed upon us the truth that legal conceptions derive life and content from nothing but their actual subject-matter. Out of this comes the recognition that there are close mutual relations between law and economics.24
24 Compare in this connection my "System der Rechts- und Wirt-schaftsphilosophie," 5 vols., Munich, 1904-1907. In conjunction with this, and jointly with Josef Kohler, I have founded the "Archiv fur Rechts- und Wirtschaftsphilosophie mit besonderer Beriicksichtigung der Gesetzgebungsfragen," which now runs in its fourth year. Out of this has grown the "Internationale Vereinigung fiir Rechts- und
It is here that sociology has rendered service; but the youthful science has also done considerable damage. Striving for "exact investigation" it hit upon the unfortunate idea of trying to transplant the method of natural science into legal and political philosophy. The consequence was that all sorts of amateurish notions choked the germs of a legal philosophy that was in accord with life; and the further consequence was that in general legal and political science nobody so much as attempted to realize the requirements of the historical method.
In this manner it has naturally come about that in the treatment of general problems legal science has to-day sunk to such depths-if I may be pardoned this harsh expression - that, conscious of insecurity and helplessness, it grasps at every straw offered to it. "Balancing of interests," "protection of interests in special need of protection," "protection of society," "social ethics" - these are the catchwords that are made to supply-poorly enough-nearly all the needs of legal philosophy.25 In this manner both scientific Wirtschaftsphilosophie samt den Gesetzgebungsfragen," the flourishing success of which is well known. It affords me a peculiar satisfaction to see that my combination of "law and economics," which amounts to a scientific platform, has been taken up by others.
25 How bad conditions are to-day will appear from a glance at criminal law. In this field, the question: What is the object of punishment? is treated as the fundamental problem of general doctrine; and this question is answered sometimes one way, sometimes another, upon a very scanty historical foundation, and always erroneously. The outcome is that the criminal court, instead of judging according to law and justice, renders some administrative decision, like an administrative officer, in order to reform the offender, to protect society, or to deter others. According to a saying of Grotius, borrowed from the ideas of Scholasticism, punishment is the "malum passionis "which is inflicted in order to equalize the "malum actionis." This pronouncement is still found in the most modern textbooks of the 20th century. As in the tale of the Talisman, all the world admires the beautiful clothes of the King; nobody is willing to be vicious or simple enough to see that in truth there is nothing to be seen-except a meaningless phrase! What has "evil"-an ecclesiastical and ethical concept - to do with the elaboration of criminal law? Or how is it possible that punishment by the State inquiry and the administration of the law are loaded down with an excess of sentimental considerations, and are hardly able to bear up under the load.
In contrast to this, we should devote ourselves seriously to the historical study of law and the State, if the science of law, after being freed from the bonds of philology, is to be rescued from aimless wandering and raised to equal rank with other sciences.
What is needed is an historical elucidation of legal concepts, legal devices, and legal rules, with reference to economic evolution. Legal history together with the correlative history of economics, cultivated in this manner, will explain the true essence of those just demands of social ethics that have grown out of the economic exploitation of the working class under the yoke of capitalism, and have for their aim nothing more than the emancipation of those who theretofore, economically speaking, had no rights. Unbiased historical reflection will give us the correct standard for these recent propositions regarding the "right to legal protection" and similar things. It will also give us a guiding rule for a reform of criminal law and procedure, as well as for a correct decision of criminal problems and as is taught by the prevailing doctrine - has grown out of revenge? If that were really true, surely everybody who reasons consistently and feels humanely would have to proclaim himself a follower of the teachings of Tolstoi!
In public law likewise the notion of a "purpose of the State," inherited from the theory of the Law of Nature, still plays its part. In civil law, "will" in connection with legal transactions still does its metaphysical mischief, just as if law had to do with "wills" instead of persons (the possessors of right) and estates. And in all branches of law legal concepts are not elucidated by historical inquiry, whereby they might be put in the way of further juridical evolution. Rather, they are deduced logically, and only logically; in other words according to arbitrary notions. These arbitrary notions are not those of an individual but an arbitrariness of judges and legal scientists who, in their natural anxiety to find support, are calling on "social ethics" for help, under a vague impression that from the point of view of social ethics the economically weaker party should under any circumstances be protected.
the fixing of punishment. Moreover, and to the present point, historical investigation will also show that the growth of law will result in coercive rules (formal and otherwise) which in the interest of certainty of law must be applied even where in a particular case they appear harsh. Thus it will reveal likewise the proper limitations on the formation of law by "liberty of judicial decision."