This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
It remains to inquire by what means the new phenomenon and the original concept may be cemented together. I shall but mention, in this place, that in every synthesis the connecting link may be either an experience or a state of feeling.96 The central image of the concept may thus be linked together with an immense mass of phenomena not originally contained in it. If it comes into contact, so to speak, with appropriate empirical facts and currents of feeling, it may extend itself far beyond its original limits by gradual, scarcely noticeable stages.
This process is particularly interesting in connection with the juridical form of thinking, because on the one hand such thinking stands in special need of precision, and because on the other hand by its tendency to establish standards, juridical thinking favors the extending process. I shall call this process projection, meaning the projection of a concept found in formulated law into the world of actual phenomena, and place it in the middle between subsumption proper and analogy. The nature of projection will become clearer in the course of my treatment, especially as I shall speak of the connecting links employed by juridical thinking in bringing together a fact and a legal concept. At present I may define it, from the point of view of its effect: Projection is the extension of a concept found in formulated law to phenomena which were not originally contained in the concept, or at least were not demonstrably a part of the group of images forming the concept, without at the same time changing the nature of the concept as such.
96 Kant's famous question whether synthetic judgments are possible a priori must be answered in the negative.
A few examples may illustrate the matter. A statute passed in 1700 provides something or other, let us say it imposes a tax, on mills "run by machine power." As long as the statute remains in force, it may without hesitation be applied to steam or electric mills, although in 1700 by "machine power" one had no idea of anything except machines driven by wind or water. Thus to apply it is neither a matter of subsumption nor of analogy,97 for we are not required to change the nature of the concept "machine power" in order to apply it to steam machinery. There is no gap, we can apply the concept immediately and directly; we attach the new phenomenon to the old concept as an integral part, although it was not originally contained in it - in short we project the old concept into the new phenomenon. Let me add, in this case the connecting link would be constituted by economic and physical data which in the meantime had become part of the meaning of the term "machine" as used in ordinary language.
Take another example. A statute provides a penalty for the counterfeiting of money at a time when nothing but coin circulates in the country. Later paper money is introduced. There would be no hesitation about holding that the counterfeiting of paper money also is punishable. Jhering classifies this example,98 in default of a better category, among the cases of analogy. However, if this were a case of analogy, one would also have to speak of analogy where gold is added to silver coin, or a different emission of paper to those already in circulation; or still more where a new form of coinage is adopted, such as (in Austria) the substitution of crowns for florins; one would have to hold that the statute had become obsolete because the subject-matter to which it referred had ceased to exist. Yet nobody would dream of such a thing. As a matter of fact, here also the concept "money" is projected upon the new varieties of money without producing in anybody a feeling as if he had been compelled to supply a rule for a case not provided for in the statute.
97 We should therefore not hesitate to apply the statute in this way even if it contained a prohibition of extension by analogy. 98 "Geist des romischen Rechts," Sec. 3, note 6.
In the two examples given above, projection can be distinguished rather sharply from subsumption; they have been selected with a view to making subsumption appear clearly as a historical anachronism. This is not, however, ordinarily the case, especially because the juridical form of thinking makes use of some artificial devices for the purpose of narrowing as much as possible the field of projection and extending that of subsumption and to make the original meaning or intention of the formulated rule seem as comprehensive as possible, even at the expense of the truth of facts.
It is evident that the legislator, in defining fraud, could have had in mind but a very small part of those more or less ingenious acts which afterwards may have been devised by insidious tricksters and to which the concepts contained in the definition, with the wide zone of uncertainty surrounding them, were applied; but it would be very difficult to draw a distinct line in this matter.
It is possible for the projection to change in accordance with changes in the effect of the "connecting links," as clearly appears from observations made above. It is well known how the concept fraud was frequently projected upon gross cases of usury during the period when (in Austria) usury was not prohibited. The "connecting link" was a consciousness of economic injuries together with moral indignation because usury was not made punishable. When the penalties for usury were reintroduced, decisions involving such projection ceased.
Viennese cabmen used to be much harassed by prosecutions for fast driving.99 When electric street railways and automobiles became common, these ceased almost entirely. Impressed by the accelerated speed generally prevailing in the streets, the courts ceased to project into the concept of "fast driving" a rate of speed which for decades had been held to be such, and yet the concept "fast driving," as employed in the law, had not changed at all, and according to the ideas of the author of the penal provision that speed unquestionably constituted "fast driving."
It is also possible for the same concept to be projected in different ways at the same time. The term and concept "weapon" has really but a single meaning. Nevertheless, in section 158 of the (Austrian) Penal Code, treating of dueling, the term is, under the influence of ideas of chivalrous honor which are unfavorable to a further projection, interpreted as meaning military weapons only, such as pistols and sabers; while the same concept, in treating of the crime of rioting in the Penal Code,100 is projected also upon entirely different instruments, such as sticks, clubs, scythes, and the like. Yet it cannot certainly be proved that the legislator, when he used the term weapon, had in mind anything but the central image of the concept, to wit: military weapons. Just as on the one hand projection cannot always be sharply distinguished from subsumption, so it may not be clearly separable from analogy. These three mental processes shade off into each other. By gradual extension of projection you reach by gentle and almost imperceptible steps what is clearly analogy-the difference is merely one of degree. We can only repeat what was stated before, that there are no leaps and discontinuities in juridical thinking. Hence it is feasible, by very extensive projection, to conceal a real analogy or at least to create boundary line cases. For example there might be a question how one should classify the suggestion that the protection afforded to railways by the section 101 of the (Austrian) Penal Code ought to be applied in favor of telegraph lines operated in connection therewith; according to the treatise of Lammasch102 on criminal law this would be a case of "extensive interpretation." Or to what class would belong the "subsumption" of the "white slave trade," about which so much has been said recently, under the concept "kidnaping?"103
99 This amusing example I have taken from a public lecture recently delivered by Dr. Elbogen. 100 Sec. 83.
With these reservations, I believe I am correct in fixing the bounds of projection on the side of analogy by saying that there is a case of construction by analogy whenever, and only when, we have the impression that the new phenomenon cannot be annexed directly to the concept except by substituting another of the images forming the concept for the image that has theretofore been the dominant or representative and central image.
In conclusion of this section I may remark that I have omitted the numerous complications arising in connection with most of the legal rules and legal concepts to which these discussions apply.