It reads like an expression of this general distrust and doubt when Pfaff and Hoffmann put at the head of their chapter on interpretation (which is exceedingly thorough and throws much brilliant light on the subject70) the proposition (which had been pronounced before upon occasion71) that "the interpretation of the Law is an art, not a science; it implies not knowledge but skill; it cannot be learned." As they proceed, practically all rules of interpretation are as a matter of fact abandoned by Pfaff and Hoffmann.
69 linger, "System," section 10.
Such a proposition, however, means that jurisprudence, the science which above all others deals with phenomena proceeding according to law, is to give up the attempt of understanding the laws to which itself is subject. Moreover, if this proposition is to be accepted as it stands, it means that jurisprudence must abandon all claims to being a science, a consequence which those who maintain the proposition probably failed to foresee.
Try to realize what is meant by interpretation: the mental reception of the text, the reconstruction of the thought concealed behind the words, briefly the entire mental activity directed upon the words strung together to make the text of a statute, an activity without which the statute would be like a meaningless jumble of words, as a book by Kant would be for a child. This considerable expenditure of mental labor, directed to finding an orderly array of ideas in what otherwise would be a chaos of words without sense, is represented as being subject to no rule or restraint, like the fancy of a poet. (The rules according to which even poetry must proceed were presumably not in the minds of Pfaff and Hoffmann when they formulated their proposition.) This mental activity is represented as purely intuitive, taking shape as it listeth. The lawyer's only guide is tact, as imagination is that of the artist. This tact itself, however, is not susceptible of explanation, its results cannot be controlled by an objective standard. They can be foreseen no more than a future poem about a given subject-matter. If that is to be the meaning of the proposition, what becomes of the claim of jurisprudence to be a method of finding truth, of being a science?
70 "Kommentar zum Allgemeinen Burgerlichen Gesetzbuch," sections 6 and 7.
71 Savigny, "System," section 32.
Yet, how could it come about that after all there is such a science as jurisprudence, that this science values the results of its interpretations, its decisions, opinions, and doctrines, according as they appear to be correct, in other words measure up to the standard of truth; and why is it that notwithstanding numerous differences in detail the practice of the courts and the results of scholarly work do on the whole lead in a single, definite direction? How could it be, moreover, that there is a possibility of legislation?
If as a matter of fact all interpretation were nothing but a sort of artistic function, then nobody could ever foresee how any law would be understood or what effect it would have. Legislation would be a blind rushing to and fro. Regarding particular details, that may really be so, yet the very fact that legislative activity exists and is able to produce effects proves that one can calculate in advance how laws will be understood at least regarding their primary and most general meaning. There can be no doubt about it-a proposition that interpretation is exclusively an art goes far beyond the mark. Such a view is to be explained merely as a reaction against the excess of the rationalistic method formerly in vogue, according to which rules of interpretation were adopted that never went below the surface of legal phenomena.
Interpretation, and juridical thinking in general, are subject, like everything that occurs, to certain laws.
They possess their own regularities which at the same time are characteristics. It is immaterial whether these laws are properly considered as jural (which has heretofore been the practice) or natural laws, whether they are merely logical or psychological also; and no more important is the question whether in future jurisprudence itself will consider the exploration of these laws as part of its functions. But the study of these regularities and characteristics must assuredly maintain a place among our scientific interests, if not as a part of legal science, then at all events as part of our knowledge regarding legal science.
However, the method of study must needs be positivist, i.e., it must inquire into the actual administration of law as shown in court practice and elsewhere. It must not attempt to lay down a priori rules, derived from some source of open or concealed bias, to which juridical thinking is bound to conform. It is true that the discovery of such rules, capable to serve as standards with which to test the particular results of juridical thinking, is one of the aims of the theory of interpretation; but that is the ultimate goal, never to be attained completely. It is not to be taken into consideration until after sufficient data have been compiled by positivist labor for the knowledge of the nature of juridical thinking.