In the science of private law, a doctrine has been evolved which comes nearest to being a theory of juridical thinking. That is the doctrine of interpretation, sometimes called legal hermeneutics. I want to anticipate here that this does not comprise the whole subject-matter of the field of juridical thinking. It neglects the technics of legislation, further the phenomenon which later will be described as "projection," i.e. the projection of a legal conception upon the facts, and generally the entire great field which forms the boundary between the mere finding of facts and interpretation proper.
23 It also explains all kinds of projects to reform, such as the establishment of a sort of legal clinic at the universities.
24 Comp. the sarcasm Jhering directs against his own youthful experiences in "Scherz und Ernst in der Jurisprudenz."
25 One would incline to think that the ideal was generated by the very fact that this quality was not found to exist.
Aside, however, from the limitation of its subject-matter, this doctrine labors under a cardinal error that renders it almost valueless. The propositions which guide interpretation, and generally the administration of law, are not conceived simply as natural regularities but as directions, in other words they are themselves considered as legal rules.
This phenomenon is evidence of an acquired habit of lawyers. They are constantly occupied with manifestations of will, such as rules or orders. Consequently they tend to see all things from the point of view of a purpose, never simply as something which exists. A lawyer does not simply wish to investigate the natural laws by which things are as they are, but to regulate and rule them. It is quite evident that this starting point in the doctrine of interpretation is erroneous, that is, it cannot produce results corresponding with the real world. For the rules governing the interpretation of law are not themselves law, or the result of legislative will. The legislator may command or prohibit. He must needs choose such means of expressing his commands as are comprehensible to those to whom they are directed. If a command is ineffective, on account of being misunderstood or the like, the legislator may supplement it by a new command, differently expressed. It is not within his power, however, by making rules to increase the measure of comprehension with which his commands are received,
Sec. 61 to regulate and improve by arbitrary rules the interpretation, that is, the sense in which other minds accept the expressions he uses. He can do nothing but make a rule. The manner in which it is understood is governed by general social, psychological, logical, linguistic, or other natural laws.26
The laws governing interpretation are natural laws, not legal norms. Or does anybody imagine that any misconception will be prevented or the interpretation in any manner affected, when a statute provides something like this: "In applying a statute, no meaning shall be given to it except such as appears from the specific sense of the words in their context and the clear intention of the legislator"? (Austrian Civil Code, Sec. 6.) Just as it suffices if a law provides for something so that it would be logically27 useless expressly to provide for obeying such a law, just so does it suffice if the legislater expresses his intention in an intelligible manner, and it is superfluous to add the rules by which his expression may be understood.28
However, this proposition must be taken with a very important reservation. Very frequently new rules of law are concealed in what has the form of rules of interpretation, in a manner similar to cases where a new rule of law pretends to be merely declaratory of an existing one.29 This is easily explained for anybody who has a
26 This is aptly put by Unger in the introduction to his "System des osterreichischen Rechts": "The key to the understanding of a code must be procured elsewhere than in the code itself."
27 Psychologically, the matter may have a different aspect, as is shown by the effect of republication or impressive repetition of rules.
28 As a matter of fact, the custom is disappearing from modern legislation.
29 It is by no means a matter of indifference whether the legislator commands the application of a rule with or without extension to analogous cases. This command, however, is an additional expression of his will, not contained in the other provisions of the statute. It is in reality not a rule of interpretation but a new rule of law. Compare, inter alia, clear idea of the similar phenomenon which Jhering, in his "Geist des romischen Rechts" calls the crystallization of legal rules into legal concepts. At a certain stage in the technics of lawmaking, it is common for laws to lose their imperative form of direct command and assume instead the form of abstract concepts from which the direct commands have to be inferred. The expressions defining such abstract concepts,30 however, have the same or greater effect as new direct commands, although they are clothed in the form of mere interpretation.31 The science of interpretation must not allow itself to be misled by this. The legislator may choose any form he pleases for his commands, but it is the business of jurisprudence to reveal the true nature of legal rules no matter in what form they may be concealed. Real rules of interpretation must be sought where they actually may be found, by tracing the treatment to which formulated legal rules are subjected in the course of actually applying them.
The theory of interpretation as it is found in books on private and criminal law, and occasionally in those on procedure,32 usually confines itself to considering laws taking the form of rules or commands. These are comparatively rare in modern statutes. Consequently it is common to go back to the Civil Law and refer to the "Corpus Juris," as if the opinion of some Roman or such rules of interpretation as "in dubio contra fiscum," or "quotiens dubia interpretatio libertatis est, secundum libertatem respondendum erit."
30 See Thol, "Einleitung in das deutsche Privatrecht," section 33, on rules denning concepts. Comp. also Bierling, "Zur Kritik juristischer Grundbegriffe," vol. 2, section 13; Merkel's article in Holzendorff's "Enzyklopadie der Rechtswissenschaften."
31 For instance: where a statute provides that parents must leave to each child a portion of their estate, and continues: "Adopted children are included in the term children" (Austrian Civil Code Sec. 763), the last clause has the form of an interpretative rule but is in reality a new rule of law extending the right to a portion to adopted children.
32 E. g.. Anion Menger, "Der osterreichische Zivilprozess."
Civil Law jurist were decisive for all time on questions like this: whether specific provisions may be extended by analogy33; whether logical interpretation may go beyond the possible meaning of a word,34 whether "cessante ra-tione cessat lex ipsa." For this reason works on legal hermeneutics are apt to be excessively full of Latin sentences and Roman technical terms, although in systematic treatises the chapters on this subject are apt to be briefer. No matter how much we may acknowledge the tact and the gift of intuition found among Civil Law jurists, it must.be admitted that they were ignorant of many phases of social function with which we have become familiar by statistical, economic, and similar studies. Therefore we are not relieved of independent investigation when we have found some dictum of the Civil Law. It is true that those old jurists often judged excellently on specific and particular cases; yet their rules of interpretation, which should naturally be of a general character, are frequently nothing but generalizations made in a one-sided manner out of a decision applying merely to such specific and particular case.
That is the reason why the rules of interpretation, as they are actually found in the Civil Law, are so full of contradictions.35 For instance, if it is a question of preventing a legal rule from being twisted, it is said: "Cum in verbis nulla ambiguitas est, non debet admitti voluntatis quaestio" (De legibus et senatus consultis, Digest I, 3); or, in connection with wills, "non aliter a signifi-catione verborum recedere oportet quam si manifestum est aliud sensisse testatorem." But at another time it is said, "Sed etsi maxime verba legis hunc habent intellectum, tamen mens legislatoris aliud vult"; or, "Non dubium est in legem committere eum qui verba legis amplexus contra legis nititur voluntatem." If one intends to apply a rule without distinction it is said, "Lege non distinguente nee nostrum est distinguere," or "et ideo rationes eorum quae constituuntur inquiri non oportet." But where the sense of justice refuses to consent to a strict application of the rule, you may say: "Placuit in omnibus rebus praecipuam esse justitiae aequitatisque quam stricti juris rationem,"36 or cite the famous "cessante legis ratione cessat lex ipsa." If one wishes to restrict a rule to its original field of application it is said that "exceptio firmat regulam in casibus non exceptis," or more specifically, "Cum lex in praeteritum quid indulget in futurum vetat" (the so-called "argu-mentum a contrario"); but if one wants to extend the rule there is a simple reply: "Unius positio non est exclusio alterius. Ratio ubi eadem convenit, idem juris est."37
33 "Quod contra juris rationem receptum est, non est producendum ad consequentias."
34 Unger's "System," chapter 3, section 3, par. 2; and note 33, where the author disagrees with Schomann.
35 HenceGeorgFrenzel ("Recht und Rechtssatze," Leipzig 1892, p. 40) says truly that there is always a possibility of several "lawyer-like operations" to extract a clear rule from an ambiguous statute, and that the courts must select one of these.
It is interesting to see commentaries and systematic treatises38 labor to reconcile all these contradictory maxims by a thousand provisos and qualifications.