147 From Jhering, "Jurisprudenz des taglichen Lebens," page 33.
In some cases, for example that of the support of illegitimate children referred to in an earlier section,148 it will turn out quite impossible to represent the influence of ethical considerations in the form of a question of fact. It will always remain purely a "norm" or expression of volition.
Economic influences are much more closely allied to pure facts and therefore more difficult to distinguish. The court will properly treat many phenomena of economic life simply as facts, indifferent as far as his mental operations are concerned. This is true, for instance, of all the several economic phenomena that make up the state of facts in each specific case, including such things as the making of a loan, payment, and the like. In so far, however, as such phenomena are of a more generally social nature, being a part of the fabric of the social body, it is frequently different, and it is this class of economic phenomena alone which we have in mind at present. In these we find for the most part the mingling of a factor of volition, of a value judgment, although this is true to a much less degree than in the case of ethical phenomena. The reason for this must be found in a disinclination to lose that which forms, as a matter of fact, the basis of social life. Unless he finds himself compelled to do otherwise, a judge will hesitate to bring about important changes in that basis by his judgment. In brief, the reason lies in the conservative tendency of juridical thinking.
148 Sec. 21 supra.
From the circumstance that the land in some country is held in some particular manner, one cannot of itself draw a conclusion regarding the way in which it ought to be held. Yet a judge will incline as much as possible to maintain the existing condition; he values that condition more highly than any change.
From the circumstance that all bathing establishments or factories are provided with a certain safety appliance, with the exception of one establishment in which it is absent, one cannot draw a conclusion regarding what ought to be, and yet there will be an inclination to impose a duty of providing the appliance in some such way as holding that its absence constitutes negligence in case of an accident.
The fact that a mortgage debt ordinarily has some economic relation to the value of the mortgaged estate (in this way, for instance, that the loan is commonly proportionate to the value of the land, and is repaid out of the income) is of itself a fact quite indifferent from the standpoint of what ought to be. Nevertheless the courts are inclined to maintain this relation, and for that purpose will hold, even without express statutory provision, that the lien covers the insurance money received after a fire.149
Recognizing that a mortgagee, in making a loan, ordinarily takes into account the value of the estate, and where there are prior mortgages the value of what is left after these have been paid, Exner takes the position in his treatise150 that subsequent mortgage holders have, not a right, but only a possibility of being advanced when the prior mortgage has been extinguished. There is nothing to this effect in the statute. From this proposition, however, Exner draws a good many consequences regarding questions in the law of mortgages. The basis and convincing power of his arguments are found exclusively in his consideration of certain economic processes and the desire of the author to keep these intact.
However, economic subject-matters of projection cannot be considered simply as facts judicially noticed, for further reasons in addition to the fact that they are interwoven with volitional elements. These are apt to be rather feeble anyhow.
Almost always, these economic subject-matters are concealed under the form of value judgments the origin of which does not enter consciousness. Or they may appear as intermediate premises with the appearance of being self-evident. As a consequence they are not ordinarily expressly referred to in the opinions of judges.
Furthermore, they are apt to be of a somewhat general nature and the degree of certainty is much less than that involved in the concept of an established fact. They are commonly opinions rather than assertions of fact. For this reason courts of appeal will consider not only the conclusions to be drawn from them, but in cases where they have been made part of the record, even their existence. In fact, it is a regular part of the function of the courts of last resort to inquire into them; that is part of their duty to pass on the law of the case.
149 Stubenrauch, "Kommentar" zu section 457, OBGB, section 633 ibid, note 3, and citations. 150 "Hypothekenrecht," Sec. 90.
Thus it appears that the question implied in the title of this section, as well as the problem raised above, at the close of section 12, may be answered as follows: There is no sharply defined boundary between the principles applied by the lawyer and the facts to which he applies them. Proceeding from the province of pure facts beyond the field of facts judicially noticed, we come to views or opinions regarding general matters of fact. These are more or less definite, more or less permeated with the will to maintain them as actual facts. Next we meet with occurrences the reality of which we postulate from the point of view of society, and which we therefore are compelled to assume as true; or we find facts the existence of which we take for self-evident because we thus postulate them. Finally, we have pure "norms" or rules, prescribing that certain facts shall be conclusively presumed. These determine our judgment without regard to the question whether the facts so prescribed or postulated really exist or not.
Both the recognition of pure "norms" or legal rules, in other words interpretation, and the consideration, recognition, and valuation of the entire transition zone (that is, the ideas composed of a mixture of actual facts and postulated notions, as they exist in the conception the lawyer has formed of the social world), are parts of the process of arriving at a "legal judgment," or of juridical thinking.151 Most of the great variety of ideas expressed in the opinions of courts of last resort, if they are not interpretation of the logical content of a legal rule nor declaration of facts, belong to this transition zone.
151 In addition, there are some others, such as real conclusions of pure logic (e.g. deductions, calculations, etc.), certain discretionary provisions, in part also the ascertaining of "internal facts," so-called. Regarding the latter, see infra, Sec. 25.