By formulating the concept "projection" it was my purpose not merely to furnish a new way of classifying the various forms of interpretation in the ordinary sense of the term, but to show the legitimacy of a wide field of ideas and mental processes for juridical thinking, which it is the custom persistently to ignore.104 All the great array of reasonings and considerations referred to in the preceding section, which neither deal with the finding of the facts nor really bring to light another meaning of a legal provision, but labor in a variety of ways over a state of facts clearly established and a meaning of the provision that is not at all ambiguous - all these ordinarily have for their end the establishment of a connection between the facts and a concept in which they are not yet contained. They relate to projection.
101 Sec. 85 (c).
102 "Oesterreichisches Strafrecht," Sec. 2.
103 Lammasch, op. cit., Sec. 47.
While it is the function of interpretation in its ordinary sense to reveal simply what is already contained in the legal rule,105 projection asserts that the results obtained by it are new and were not already contained in the mind of the legislator.
One may suspect at the outset that a theory which ignores these phenomena cannot live at all except by secretly operating with some inexactitude, some variable quantity which, so to say, forms a hiding-place in which all inconsistencies are concealed as well as may be. It is not difficult to discover this variable quantity.
104 Comp. Gareis, "Encyklopadie der Rechtswissenschaft" [vol. i of this Series], section 13: "To apply the law is a mental operation directed towards the subsumption of a state of facts under a legal rule."
105 Thol's instinct for truth could not fail to see that in reality this is not the case, and consequently he insists quite impressively on the newness of the result. However, he does not know how to reconcile this with the rest of his views regarding the theory of interpretation, feels embarrassed, and loses himself among complications. Comp. his "Einleitung in das deutsche Privatrecht," section 58: "Interpretation also must always [?] produce a new rule. For the rule gained by interpretation had no existence prior thereto. At the same time, this rule is a part of the statutory rule, for it has its deeper foundation in the text of the statute. All legal science had to do was to find the intended content of the statute." (Then it was not new after all?) "Interpretation is always receptive and productive at the same time." Comp. also Pfaff- Hoffmann, "Kommentar," p. 169: "If we were to take an inventory of our juridical convictions, many of us would be surprised at the number of principles they accept but for which they could find no authority in the codes."
Leaving out of account the use of analogy which is held to be anomalous, it is claimed that the only purpose of juridical thinking is to find the will, meaning, or intention of the legislator. Now it may be asked: Who is this legislator whose will constitutes the sole subject-matter of jurisprudence? Is he something real, something having an empirical existence, as is proper for a positivistic science?
I disregard all theories of legal philosophers regarding the ultimate reason why laws have binding force, theories which find this ultimate reason variously in the will of God, the will of the people, common consent, etc.,106 and confine myself exclusively to the views found in the teachings of practical, exact jurisprudence. Who is this "legislator"?
Is it really, as taught in constitutional law, in monarchical States the prince, in republics the representative assembly of the people? But anybody can see that in a modern State the prince would have to be a professional lawyer even to know the titles and general contents of the many laws and ordinances promulgated in his name. Just look at the outside of the ponderous tomes of a set of the "Reichsgesetzblatt," and you will at once renounce that idea.
For a long time this question used to be evaded altogether. By boldly identifying "will of the legislator" and "will of the law,"107 and by confining oneself mainly to the text of the statute for discovering this "will,"108
106 These theories are found collected in Bierling, "Kritik juristischer Grundbegriffe." The author himself holds that the constitutive element of law is found in the continuous acceptation of a principle as the rule of their social life by those subject to it.
107 Unless one is to personify the statute after the manner of mythology, that means nothing less than "the will of some person, the identity of whom is irrelevant, expressed in the statute." Comp. Eckhard, "Her-meneuticae juris libri duo," section 4, note: "In hermeneuticis sensus auctoris a. sensu orationis non discrepat sed pro eodem habetur."
108 Thibaul, in his "Theorie der logischenAuslegung," section 29,says: "In practice, a lawyer will interpret a statute logically in those cases people escaped to a degree the necessity of bothering about the person of the legislator. Then the Historical School came upon the scene with its emphasis on the historical factor. Moreover, as the result of constitutional and other changes, the custom arose of publishing the preliminary work of statute-making, which had hardly ever been done theretofore. Such were collections of data, reports of committees, proceedings of parliamentary bodies, bills, and the like. Then at last it was possible to find the real and tangible person of this mystical legislator whose state of consciousness, whose "will" was to be explored by juridical science. Quite obviously, the legislators are the draftsmen, with their collaborators and helpers, all who take part in drafting and editing statutes. "Necessarily, the legislative intention is identical with the meaning which the authors of the statutes attached to the words employed by them," and for that reason it was claimed that, for example, the intention of the committees that drew the commercial code or the negotiable instruments law ought to be considered as the will of the legislator.109