This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
With reference to the letter of the statute, the law also should be interpreted in the way in which, according to the Civil Code,28 private declarations are to be interpreted. Where we are dealing with principles which have themselves been produced by scientific deduction from the statutes, we should never forget that such principles are not dogmas. The matter was recently put very aptly by Max Rumelin.29 He says: "We shall incline easiest toward declining an inference from the mere letter in those cases where the statute itself, by provisions regarding other interests to be considered, shows that our inference is wrong; in such cases we are still within the field of textual interpretation. However, we ought not to stop there. Whenever important considerations demand it, we must
25 Sigwart, "Logik," vol. 1, sect. 2.
26 The most frequent error involved in this method is that we operate with the "argumentum a contrario" where we should draw a conclusion by analogy, or the opposite, as is shown by Fuchs in a great many examples.
27 Wach, "Handbuch des Zivilprozesses," vol. l.page 258.
28 BGB, Sec. 133.
29 In his very remarkable academic address of November, 1908, on "Das neue schweizerische Zivilgesetzbuch und seine Bedeutung fur uns." (Tubingen, 1908, Mohr, p. 31.) fall back on the presumption that the legislator meant to be reasonable, and could not have intended an absurd decision. The more sensitive and fine a feeling for justice is evolved, the less shall we be satisfied with decisions not evidently right on the merits. When the law has become highly developed we may even arrive at this rule of interpretation, that disputes which had never been contemplated by the legislator, especially such as had never arisen in practice before the statute was made, cannot, in cases of doubt, be construed as covered by the express sions of the text."
I do not believe that there is danger of impairing the certainty of the administration of the law by greater emphasis being laid on the sense of justice, in the way advocated here. I am rather inclined to believe that our administration of justice will be rejuvenated thereby. Excessive formalism must go, and for it must be substituted a more natural conception that will harmonize with the actual conditions of social life, so as to insist consciously upon the practical needs dictated by our sense of justice.
An alluring task would be to discuss the question whether the preparation offered by our schools may not need reforming. However, from that I must refrain. I should say that all conversant with existing conditions are agreed that there is such need, and they also agree, probably, that the legal profession whose members are so often charged with being strangers to real life, would be the greatest gainer from a reform that would put training for practical thought and action in place of mere formal education of the reasoning faculty. We should wish that the law student at the university might be enabled to avoid mere narrow specialization and could come into touch as much as possible with other branches of knowledge.
In recapitulation, we may say this: There is good reason why discussions have recently arisen regarding the art of administering justice. In part, at least, that art is still far removed from the ideal I proposed at the beginning of this paper. What we judges require in the practice of our daily labors is not merely a logical elaboration of the legal matters submitted to us in each case, but an energetic progress toward the goal of realizing justice on the foundations of positive law. We need a vivid understanding of the facts,30 a sympathetic treatment of the human destinies that are passing before our eyes. We must strive to penetrate into the needs of the parties who come before the judge as patients come before the physician, so that we may not offer them the stone of bald reasoning but the bread of sympathetic relief. Let us break with the habit of using our decisions to parade learned disquisitions, expressed in diffuse verbiage incomprehensible to the layman! Much would be gained if the writers of the million or so opinions accompanying judgments rendered annually in the German Empire were all firmly agreed to shun all scholastic subtleties, artificial deductions and forced constructions. They might well take for their motto the lines of Goethe:
"Good sense and honest judgment will With little art expound themselves."
A determination to follow such principles will take the German judiciary a good deal farther than all the pretended learning they can infuse into their labors.
30 That is why the ability of a judge shows itself nowhere more plainly than in the manner in which he handles the facts and puts questions to the witnesses.