This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
Enough of this!24 Let us ask: What profiteth, in such cases, an intimate acquaintance with all the commentaries, monographs, and annotations of the statutes? Are not these all very simple questions which, as it happens, the statutes have not expressly provided for, but for which anybody can find the answer in his own good sense in order to realize "the law that is born with us," which we are sorry to say, in the cases cited, is not the law as laid down by the Imperial Supreme Court?
And unfortunately it is true that these three "anti-sociological" decisions may be the worst but are by no means the only ones that give evidence of the existence of a false system, a formalistic, narrow-minded method of interpretation, which is satisfied when the letter of the law has been applied to cases for which according to general human feeling it is not intended. Fuchs is right when he says that again and again we meet with judicial decisions that are far removed from that which a mind not sophisticated by scholastic argumentation would deem just and proper.
If the method in which we, who have grown up under a formalistic training, have learned to find the only salvation, and regarding which we are apt to forget that by logic we can guarantee the formal correctness of procedure but never the correctness of the results25 26-if that method leads to such unfortunate results, why, then, something else must be substituted for it. And would it really be arrogant and worthy of condemnation if a German judge should remember his sense of justice and emphasize - even in express words - what he believes to be just and equitable in the case to be decided, and then proceed to show that what he has thus found to be just is really in harmony with the established law? For the law has in its favor the presumption of being reasonable,27 and according to Thol the statute maybe more intelligent than the legislator.
22 "Holdheim's Monatsschrift." 1909, p. 52, col. 1.
23 RGZ 69, p. 79.
24 In passing I wish to state that I substantially agree with the criticisms expressed by Fuchs ("Recht und Wahrheit" pp. 25-88) relative, among others, to the following decisions: JW 1907, p. 301, no. 3; RGZ 65, no. 16; 66, nos. 14, 50. 62, 67.