The fiction involved in calling the judicial process of finding the law by the name of interpretation leads to just such mischiefs. It gives rise to an aversion to straightforward change of any important legal doctrine. The cry is interpret it. But such interpretation is spurious. It is legislation. And to interpret an obnoxious rule out of existence rather than to meet it fairly and squarely by legislation is a fruitful source of confusion. Yet the bar are trained to it as an ancient common-law doctrine, and it has a great hold upon the public. Hence if the law does not work well, says Bentham, with fine sarcasm, "it is never the law itself that is in the wrong; it is always some wicked interpreter of the law that has corrupted and abused it."19 Thus an unnecessary strain is imposed upon our judicial system and courts are held for what should be the work of the legislature.
With respect to legislation proper, however, there is much yet to be done in the development of a better system of interpretation and application. Vandereycken finds three stages in the development of judicial interpretation.20 (1) The literal stage, is one in which the exact words taken literally are made the sole measure. (2) In the logical stage the law is taken to be constituted by the will of the lawgiver and respect for this will takes the place of the respect for the formula which governed the preceding period. Most of our common-law interpretation belongs to this stage. We conceive of genuine interpretation as an attempt by logical methods to ascertain the will of the author of the law. (3) In the positive stage, the law is regarded not so much as something proceeding from the will of the lawgiver as something proceeding from society through him; as being the product of economic and social forces working through him and finding expression in his words. Hence the text and the context is no longer held to be an all-sufficient guide. Nor are the circumstances attending enactment held conclusive. Above all things, it is held, regard must be had to the exigencies of social life, to the social ends to be served, to the effect of the different possible interpretations or applications upon the community to be governed thereby. Kohler, one of its pioneer advocates, has applied this method to the new German Code, and his exposition deserves to be quoted. He says:
19 "Fragment on Government," xvii.
20 "L'Interpretation juridique," Sec. Sec. 236 ff.
"Thus far we have overlooked most unfortunately the sociological significance of lawmaking. While we had come to the conviction that it was not the individual who made history but the totality of peoples, in lawmaking we recognized as the efficient agency only the person of the lawmaker. We overlooked completely that the lawmaker is the man of his time, thoroughly saturated with the thoughts of his time, thoroughly filled with the culture that surrounds him, that he works with the views and conceptions which are drawn from his sphere of culture, that he speaks with words that have a century of history behind them and whose meanings were fixed by the sociological process of a thousand years of linguistic development, and not through the personality of the individual. The opinion that the will of the lawmaker is controlling in construing legislation is only an instance of the unhistorical treatment of the facts of the world's history and should disappear entirely from jurisprudence. Hence the principle: rules of law are not to be interpreted according to the thought and will of the lawmaker, but they are to be interpreted sociologically, they are to be interpreted as products of the whole people, whose organ the lawmaker has become."21
It is significant that the "Juristentag" in Germany has already undertaken legal-sociological inquiries with respect to the social effect of existing laws as the basis of proposed legislation, and that at least one German professor of law has for some time maintained a seminar devoted to studies of this type.22
As has been said, our classical common-law interpretation is of the second type. But something very like sociological interpretation has begun in this country. The briefs submitted by Mr. Brandeis in the case of Muller v. Oregon and in the case involving the Illinois statute as to hours of labor of women show what may be achieved in this direction.23 Recent decisions of the courts upon the constitutionality of workmen's compensation laws show that the good sense of our courts is leading them to develop some such method for themselves.24
With respect to interpretation, then, I take it our tasks are (1) to rid ourselves here also of absolute theories.
21 "Lehrbuch des burgerlichen Rechts," i, Sec. 38.
22 Kantorowicz, "Rechtswissenschaft und Soziologie," 9; Ehrlich, "Die Erforschung des lebenden Rechts," Schmoller's Jahrbuch fur Gesetzgebung, Gewaltung und Volkswirthschaft, xxxv, 129.
23 See the briefs in Muller v. Oregon, 208 U. S. 412; Hawley v. Walker, 232 U.S. 718; Miller v. Wilson, 236 U.S. 373; Bosley v. McLaughlin, 236 U.S. 385; Ritchie v. Wayman, 244 111. 509; People v. Schweinler Press, 214 N. Y. 395; Stealer v. O'Hara, 69 Ore. 519.
24 Opinion of Justices, 209 Mass. 607; State v. Creamer, 85 Ohio St. 349; State v. Clausen, 65 Wash. 156; Borgnis v. Falk, 147 Wis. 327.
and in particular of the remains of the dogma of finality of the common law, (2) to repeal what ought to be repealed directly and straightforwardly and not store up mischief for the future by demanding indirect repeal by spurious interpretation, (3) above all to develop a sociological method of applying rules and thence if need be of developing new ones by the judicial power of finding the law.
A radically different view is finding favor with many laymen to-day and has been advocated by professors of government and political science. One of the latter has suggested recently that the power of interpretation should be taken from the courts and given to some executive body in supposed closer touch with the popular will, thus confining the courts to the task of applying the prescribed and interpreted rule. Perhaps enough has been said to show that interpretation apart from decision is impracticable, that it is futile to attempt to separate the deciding function from the interpreting function. But if the mere function of genuine interpretation were to be set off - and of course spurious interpretation is lawmaking and on theoretical grounds is no more proper for an executive commission than for a court, and on practical grounds is obviously better exercised concretely than abstractly - how little should we accomplish! Professor Gray has put the matter very well thus: "A fundamental misconception prevails and pervades all the books as to the dealing of the courts with statutes. Interpretation is generally spoken of as if its chief function was to discover what the meaning of the legislature really was. But when the legislature has had a real intention, one way or another on a point, it is not once in a hundred times that any doubt arises as to what its intention was. If that were all that the judge had to do with the statute, interpretation of the statutes, instead of being one of the most difficult of a judge's duties, would be extremely easy. The fact is that the difficulties of so-called interpretation arise when the legislature has had no meaning at all; when the question which is raised on the statute never occurred to it; when what the judges have to do is, not to determine what the legislature did mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present."25