By Josef Kohler 1

Sec. 1. the reasons why interpretation is needed. -Sec. 2. legal interpretation distinguished from interpretation in general . -Sec. 3. how the true meaning is discovered. - Sec. 4. interpretation changing with social circumstances. - Sec. 5. an example of effective interpretation. - Sec. 6. the intention of the legislator. - Sec. 7. broad and narrow interpretation. - Sec. 8. interpretation of unwritten law.

Sec. 1. The Reasons Why Interpretation Is Needed

To interpret means to look for the meaning and significance behind the expressed words. The necessity for interpretation appears not merely from the consideration that thoughts cannot be communicated except by some external means of expression, but also from this, that frequently thoughts do not become clear and perspicuous in the thinker's own mind until they are expressed. The latter consideration has commonly escaped attention, and a succession of errors has resulted.

To interpret is to discover meaning and significance. It does not concern the meaning and significance of what some person intends to say, but of what is actually said.

[' From the author's "Lehrbuch des Burgerlichen Rechts"; Book I, chapter iii (Dialecticism And Technicality: The Need Of Sociological Method), sections 38 to 41. There has also been translated in this Series a complete work of the author on the Philosophy of Law, the editorial preface of which translated volume (xii of this Series) contains an account of the author's life and works. The present translation is by Ernest Brnncken.]

It is a common error to believe that thought is a complete slave of our will and never produces anything but what we intend. In reality, thought is quite independent of will and often goes far beyond what the will intended. A thought of this kind is uncertain and indefinite until it becomes clear by being expressed, but even then it remains impossible that all it contains, down to the last and most profound depths, should be apparent at once.

The reason why thought has so wide a background will be found in this, that all our thinking is not merely individual but also social; what we think is not our own product. It is rather something infinite, the product of the mental labors of centuries and thousands of years. It is connected with an infinite number of other thoughts; its concepts are full of ideas of which the thinker himself is not conscious.

Hitherto we have committed a great error in not realizing the sociological significance of legislation. In historical science, the truth has been generally accepted that history is not made by individuals but by society; in the science of legislation, however, we have assumed the person of the legislator to be the exclusive factor. We have entirely overlooked the fact that the legislator is a man of his age, completely saturated with the ideas of his time, completely filled with the civilization surrounding him. We forget that he must work with notions and conceptions taken from the intellectual atmosphere in which he lives; that he must employ words which have a history stretching back for centuries, words the meaning of which is fixed by a sociological process of language-formation that has lasted for thousands of years and lies by no means within the personal choice of the individual. To believe that legislation depends exclusively on the intention of the legislator is evidence of an entirely unhistorical attitude toward historical processes. Such notions ought to disappear completely from legal science. Hence we may say, statutes are not to be interpreted according to the ideas and intentions of the legislator, but should be interpreted sociologically, as if they were the products of the entire people of which the legislator was but the organ.2 Such is the meaning of the well-known saying that the law is much wiser than the legislator. The law contains within itself the results of an infinite amount of social labor, so that the maker of a statute is rarely its best interpreter. This has once more been illustrated recently. It would have been a misfortune for our civil code if the interpretation furnished by Planck had to be accepted as a canon for our guidance.

From all this we may infer:(1) Statutes require interpretation because they cannot be communicated except by words, and because the thought is concealed under the word as under a garment; (2) because the thought contained in a statute is only partially clear to the author of the statute, who is no more the master of the thought than thought in other instances is the mere slave of the will; (3) by means of interpretation we may discover a profound, sometimes an almost infinite, significance in a statute. For the thoughts expressed therein are by no means those of its individual author. They are the thoughts of mankind itself, which the legislator merely has given particular form and expression.3