Every fundamental investigation must first of all establish the
[1] R. v. Ihering: Scherz und Ernst in der Jurisprudenz. Leipzig 1885.
[2] Warnkonig. Versuch einer Begr
ndung des Rechtes. Bonn 1819.
[3] H. Spitzer: ber das Verhltnis der Philosophie zu den organischen
Naturwissensehaften. Leipzig 1883.
[4] Cf. Gross's Archiv VIII 89.
[5] A. v. ttingen: Moralstatistik. Erlangen 1882.
nature of its subject matter. This is the maxim of a book, ``ber
die Dummheit''[1] (1886), one of the wisest ever written. The same
axiomatic proposition must dominate every legal task, but especially
every task of criminal law. It is possible to read thousands upon
thousands of testimonies and to make again this identical, fatiguing,
contrary observation: The two, witness and judge, have not defined
the nature of this subject; they have not determined what they
wanted of each other. The one spoke of one matter, the other of
another; but just what the thing really was that was to have been
established, the one did not know and the other did not tell him.
But the blame for this defective formulation does not rest with the
witness--formulation was the other man's business.
When the real issue is defined the essentially modern and scientific
investigation begins. Ebbinghaus,[2] I believe, has for our purpose
