This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The systematic element in interpretation consists in the discovery of the meaning of a provision by comparing it with others of a similar character or referring to the same subject-matter. It presupposes that there is a multiplicity of legal rules or legal concepts. There are, by the way, still other features of juridical thinking caused by the multiplicity of legal rules. For example, where the meaning of several provisions in question is certain and the problem is merely to find how they interact upon each other with reference to a given complicated state of facts, we call the mental operations involved therein "juridical construction." Sometimes it happens that a certain state of facts is directly governed by a rule of law, and that the same result may be obtained by "construing" other rules of law. In such cases the "construction" constitutes, so to speak, a test of the correctness of the interpretation.118 The finding of the proper rules governing the facts and their correct "construction" are generally considered as the source of all practical difficulties in administering the law. Now there can be no doubt that very frequently the comparison of several rules will show what the real intention is that is contained but not apparent in one of the rules taken by itself. But what interests us specially in this place, is that juridical thinking, imbued with the desire to bring out as much as possible of the legislative intent, allows itself to be guided, sometimes, by the sole tendency of "constructing" out of the entire body of legal rules a single, harmonious intention of the legislator. In making use of the systematic method in this manner, lawyers often disregard altogether every kind of empirical truth. No lawyer seems to hesitate upon occasion to explain or construct a statute in the light of some other statute, even if they were each adopted by entirely different persons and at different periods, and in doing so he never asks for even the semblance of proof that the legislator who enacted the statute to be interpreted ever had the other statute before his mind's eyes. Instead of that, it is presumed, and the presumption is to be overcome only by opposing considerations of greater strength, that the legislator, when he enacted the rule which by itself is ambiguous, had before his mind all other legal rules in force, so that the most profound and recondite meaning of every other provisions of law may be called upon for the construction of the statute in question. Thus the "legislator" is represented as a being who in the immense multiplicity of legal rules constantly preserves a harmonious unity and is never inconsistent. The lack of reality created by this unifying tendency may be illustrated by an example.
118 The mania for "construction" (deduction) with this object in view was made fun of by Jhering.-The term "construction" is connected with the conception of laws and legal institutions as units by the combination of which the decision is built up.
The Austrian personal tax act of 1896, among other things, subjects "the enterprises of joint stock companies" to an increased rate of occupation tax. This means, of course, enterprises belonging to joint stock companies. The concept is entirely clear to anybody who knows what a joint stock company and an enterprise are, but of course there is here also that transition or twilight zone of which nobody thinks at first glance. It happens that a joint stock company managing a factory goes into bankruptcy. The trustee refuses to pay the increased tax rate on the ground that the factory is now an "enterprise of a bankrupt estate" and no longer "an enterprise of a joint stock company." The matter comes into court, and judgment is rendered against the trustee adjudging him liable for the tax.119 Let us look at the arguments, which are based throughout on the systematic element in interpretation. First of all, the judge builds up or "constructs" (whether he is right in doing so or not is immaterial), by bringing together a large number of provisions from the Bankruptcy Act of 1868, the rule, which is not explicitly contained in this act, that "by the declaration of bankruptcy the debtor is deprived of but a part of his power of disposal, and that only for the time during which the bankruptcy proceedings are pending. In all other respects he retains all rights and duties in connection with the estate just as he had them before the declaration of bankruptcy." The opinion continues: "Hence it follows that an enterprise belonging to a joint stock company which goes into bankruptcy continues to be an "enterprise of a joint stock company" and must therefore be counted with those which Sec. 83 of the Personal Tax Act intends to subject to the increased rate of occupation tax."
119 We should not fail to note that this decision rested on several grounds in addition to the one here discussed. This fact, however, does not affect our argument because the object of this is not at all to cast doubt on the correctness of the judgment of the VGH (of Dec. 30, 1901), but to study the manner in which the reasons for it are presented.
This deduction is considered as conclusive. The question is not even raised whether as a matter of fact the legislator of the year 1896, enacting the Personal Tax Statute, had before his mind the various provisions of the Bankruptcy Act of 1868 and the rules "constructed" from them by the ingenuity of a judge, or even whether this legislator had any thorough knowledge of the Bankruptcy Act at all. Nor will any lawyer criticize the omission to raise this question, although one would necessarily have to investigate that question and give an affirmative answer to it if one intended that the "meaning" of section 83 of the Personal Tax Act was to be the actual meaning the actual legislator really connected with it. Juridical thinking, however, impelled by its tendency towards unity, leaps over this preliminary assumption and connects the premise directly with the conclusion. In the very same opinion, however, we may find the proof that the process just described is by no means a matter of course, that a different procedure is logically possible and is on occasion adopted. Section 119 of the Personal Tax Act provides: "When an enterprise enters upon liquidation, such act is not to be construed as a ceasing of the enterprise, unless at the same time there is a total suspension of business." To this, the trustee in bankruptcy opposed the argument that section 119 could not apply to the case at bar. For according to section 133 of the Commercial Code liquidation is possible only apart from bankruptcy. Now section 119 speaks of "entering into liquidation." Liquidation and bankruptcy being different and even mutually exclusive, it follows that section 119 had nothing to do with his case. To this argument the court replies: "Plaintiff in error forgets that the Personal Tax Act was not meant to be restricted to the technical legal concept of liquidation. . . . the Personal Tax Act was dealing with the economic concept" and the case of bankruptcy was fully covered by it.
This example is instructive also as showing that at the very moment when one parts company with empirical truth, as is done here by the artificial extension of the mutual interaction of various concepts throughout the whole body of the law, one also runs the risk that two or more equally well-founded opinions may be opposed to each other. For precisely the same form of reasoning which led the court to find against the trustee also might have caused it to find in his favor. It could simply have said: "The concept liquidation, as found in section 119 of the Personal Tax Act, is a technical legal concept. Its precise meaning must be construed in accordance with the Commercial Code, which provides that it shall not include bankruptcy. As a matter of fact, however, when the Personal Tax Act, in its section 83, speaks of the enterprises of joint stock companies, it contemplates an economic, not a technically legal one, and everyday experience teaches that economically, even if not juridically, the enterprise of an insolvent stock company is carried on for the account of the creditors and not for that of the company.