2. There are cases unprovided by positive law, that is, by the will of the legislator.
"There never can be a case requiring recurrence to the law of nature. For analogy is sufficient to solve every question in accordance with the spirit of the existing law." All the more surprising it is to find him assert, in the very next chapter (page 159) that for questions of international private law a reference to the Civil Code is not enough. "There are a number of most important questions," he says, "the solution of which is not even suggested in the Code. . . . We must therefore be permitted to solve such questions according to the methods recognized by the theory of international law." Notwithstanding his attempts at explanation, however, he fails to furnish the criteria of the correctness of his explanations.
63Pfaff and Hoffmann themselves define "ratio juris" as "the legal rule purified of the accidental qualities due to its historical origin."
64 Discussion of this point will be reserved (see part iii inf.) This sort of logic thinks of concepts as if they were firmly circumscribed bodies in space, like geometrical figures, and therefrom obtains the idea of empty places in the law that have to be filled up by extraordinary means.
3. Where there are unprovided cases, the result is not the absence of law regarding them, but instead there arises a supplemental law which is also positive 65
In the present place, I shall simply point out this unsolved contradiction, and in order not to anticipate matters to be discussed later, I shall not now attack the correctness of the assumption that the "ratio juris" serves the purpose of giving a strictly logical justification for the use of analogy. All I shall do now is to cite an example of the opposite. I select for that purpose the very case which Unger66 uses to demonstrate the function of the "ratio juris."
A section of the Code 67 deals with the duty of a bailee to return the thing bailed, and ends with the statement that "neither an offer to compensate nor a claim of former ownership will excuse from the duty to return." Now Unger asserts that the principle, or "ratio juris" on which this provision is based, is the requirement of good faith that contracts must be performed, and that "quod bonae fidei est ad perfidiam non est trahendum." Consequently the last clause of the provision ought to be applied by analogy in all cases where there is a duty of returning specific things, even if there was no express bailment.
The Austrian Civil Code, however, expressly recognizes the legal institution of compensation, and this also has its "higher principle" or "ratio juris."This is well known and runs: "Dolo facit qui petit quod redditurus est." Now why could one not apply, with the same logical right, instead of the "ratio" of Sec. 1109, the "ratio" of the legal institution of compensation in the unprovided cases which Unger has in mind? Then the decision would be precisely the opposite way, but it would have been arrived at by the same form of reasoning which Unger describes. I do by no means deny that Unger's decision is correct, but I do deny that he is correct when he pretends to logical consistency. We can learn from this example that the result was not obtained by the aid of the conception of "ratio juris," which is cited in support of it.
65 Menger, in his theory of interpretation, which is based on independent thought ("System des osterreichischen Zivilprozesses," sect. 8) attempts to overcome the contradiction by dividing interpretation into historical (philological) and practical forms. Only the former he admits as inquiry into what the legislator said and meant to say by his provision, while the second form goes beyond that and tries to find what the legislator would have said if he had intended to make a rule for the case under discussion. While the distinction between practical and historical interpretation is unquestionably true, it is also indubitable that one gets beyond positive law the moment he asks and answers the last-named question.
66 "System," Sec. 10, note 21.
67 Austrian Civil Code (OBGB) Sec. 1109.
Here as elsewhere, the "ratio juris" is nothing but a form assumed by the process of juridical thinking to furnish an apparent reason, while in reality it was led by entirely different motives and impulses. "Ratio juris" is not at all the justification for the application of a rule by analogy, but merely a convenient instrument for giving a sophistical reason, convenient to handle on account of its vagueness and elasticity; an instrument the use of which often saves one from digging out the true reasons of one's conviction as to what the law is regarding this or the other state of facts.
In addition to this explanation of analogy by means of the "ratio juris," which might be called the official one, occasionally we find other attempts at such explanation. For instance, one may hear of the organic nature of law, or about an intrinsic consistency which is not necessarily logical but organic.68 For the law is said to be an organic compound of members connected with each other and possessing a power of growth by which it is capable of developing into a complete whole harmonious in itself;
68 Savig?iy, "System des heutigen romischen Rechts," section 46.
therefore it must be perfected out of its own intrinsic nature69
Metaphorical explanations of this sort, addressed as they are merely to the imagination, must fail to satisfy anybody who recognizes that the so-called organic or biological method in the social sciences, based on the comparison of law, language, society, and things similar to animal or vegetable organisms, is nothing more than a series of comparisons which may be very useful for a vivid description but by themselves explain nothing in particular. It is a method of description rather than a method of investigation.
The faults of the customary theory of interpretation are shown in a particularly glaring light by this incapacity of explaining the problem of analogy and the inconsistencies inherent in the attempts at explanation. Nor are such faults absent in other parts of the field, where they assume different forms. For they are the result of general causes. The main reason, as stated above, must be sought in the insufficiency off the antiquated logical means of which the theory makes use. If we may also use metaphorical language, this theory is incapable of embracing practical life, which is surrounded by an atmosphere of freedom and carried on in the full possession of intellectual liberty. The theory of interpretation is the principal attempt at a conscious understanding of the nature of juridical thinking, but it is wrecked and discredited when it runs upon the rock of being inconsistent with real life. No branch of juridical science is so sunk into oblivion as legal hermeneutics, no rule meets with so much doubt and distrust as a rule of interpretation.