Undoubtedly, one may gather a plenty of new and realistic material for the understanding of the logical content and the true intention of a rule of law by the study of its history. By doing so he will recognize in the rule either the continuation of preexisting conditions or theories and the like, as by a reduction to writing, formulation, codification; or a conscious opposition against the existing law, resolved upon by the legislator. In either case one obtains points of contact for the subsumption of the various facts under the actual, really ascertained will of the legislator. The historical method fails, of course, where the question is regarding new phenomena, or regarding social features that did not arise until after the law was made. Up to that point, however, the historical method may render inestimable services for the exploration of the actual intention at the basis of a rule of law.
The method that first suggests itself for the exploration of such intention would be a direct inquiry into the intentions of the persons who took part in the making of the law. This would be the personal or individual side of the historical method. The doubt, however, with which legal science regards it indicates in a characteristic manner that the historical method is not exclusively governed and developed by the desire to explore the empirical, historic reality.
Far more effective is the historical method on its social side, where it has achieved great triumphs especially by investigating the origin of legal principles. This branch of study is devoted to elucidating the meaning of legal rules by showing how they developed, which is done mainly by comparing the existing law with its former state. At once, however, another tendency inherent in juridical thinking becomes manifest, to wit, its conservatism. Of the two possibilities mentioned at the beginning of this section, that of the new rule being opposed to the former law, and that of its being a continuation of it, the historical method of interpretation presumes the latter to be the natural, regular case, while the former is the exception which must be proven. The historical method of discovering the meaning of a law presumes that the expressions of the will of the legislator are to be construed as continuing the existing conditions, such as the prevailing practice, the established relations of social groups and similar things,120 unless a different intention is actually manifested. Much of the excellence of the historical method lies precisely in this. This presumption is so familiar to us that we have difficulty in imagining another way of proceeding; and as a matter of fact it corresponds ordinarily, although by no means always, to the actual, historical course of events. The exception is shown, for instance, in the case of rulers inspired by the ideas of the French Revolution or other reform movements. Their commands ought to be interpreted historically far more with a view towards realizing the new ideas than so as to continue existing conditions, if the state of mind actually at the basis of such laws is to be the decisive criterion. But the "legislator" whose will is to be discovered is not an actual person at all, and is always conceived as conservative. The presumption is always that his will intends to preserve existing conditions to precisely the extent that he fails to express clearly an intention to change them. This is intelligible enough when one considers the close connection between the life of the law and the State. The State, like every great organization, cannot but be essentially conservative.121
A large portion of juridical tact consists in an intuitive inclination towards maintaining existing social conditions. That construction which causes the least shock to the old tradition has in its favor, to use an old-time expression, "fundatam intentionem." Whoever attempts to bring about a shifting of the existing relations of social forces by inferences and legal "constructions," be they ever so plausible, ordinarily does not think in a lawyer-like manner. At the sitting of the German Reichstag, on May 9, 1884, Bismarck, in order to gain the majority of the House for his social reforms, attempted to prove from certain legal provisions that the right to employment had been legally guaranteed as far back as the Prussian Civil Code. Now it would hardly do to charge a man like Bismarck with being illogical; but it is quite certain that he did not reason juridically. The unjuridi-cal element is found in the tremendous revolution that would be produced by his kind of interpretation.
120 Lawyers, who are ever tending to look at the normative element rather than on the mere facts, are apt to speak, in this connection, of "the condition of the law." That, however, is too narrow; compare supra, note 55.
In a very similar manner we might, without committing an error of logic, construe the provisions of the Settlement Act122 so as to bring about in effect almost a community of goods among the members of a commune. One may say: "Necessary maintenance," such as the commune is obliged to provide for its members who are unable to provide it themselves, means all things necessary for the preservation of physical and mental health according to the principles of modern hygiene. This principle is hardly contestable from the standpoint of logic. From it one may deduce the duty of communes, in proper cases, to send their poorer members to health resorts or watering places, to see that they get a sufficient supply of meat, and similar things. Obviously this would not be a legal conclusion. The unjuridical character of the reasoning would be found in the necessity of imposing enormous burdens on the well-to-do part of the population.
Again, in some cases it might not be illogical, but would certainly be unjuridical, if one should hold that impecuniosity is a ground of absolving a debtor from meeting his obligations either altogether or for a certain period, on the principle that "impossibilium est nulla obligatio."
122 Austrian Settlement Act of Dec. 3, 1863, Sec. Sec. 22, 24, 25, 26.
In the prevailing state of opinion, however, regarding the value of historical considerations for the interpretation of legal rules it is less necessary to dwell upon the importance of conservatism in juridical thinking than to remind oneself that after all the lawyer cannot always discover the truth by looking backwards. Leaving out of account the constantly accruing mass of phenomena for which no equivalent can be found in the past, it is still common for the tendencies inherent in the historical method to be kept down by other tendencies. To assume the contrary would imply a nation, or at least a judiciary, that is stationary in its development and with souls attuned to unconditional submissiveness to tradition. Where this condition is lacking, historical inquiry will continue to explain the meaning of the law; but by its revelation of the "human, all too human" agitation which precedes the adoption of every new statute it will deprive the law of the halo that surrounds its clear commands, distinguishing them from every other rule of life, no matter how wise, and making it appear in the eyes of every good citizen, subject, judge, or official as the expression of supreme authority and as such raised above all criticism and debate.
Hence there is always a point beyond which the interpretation of a legal provision by contemplating the conditions of the past must not go, or the rule will lose something of its authoritative force. How much of that which lies behind the statute should be considered in exploring juridical truth is dependent on the prevailing sense of reverence for tradition and the rapidity with which the development of a nation progresses, but there is always a limit somewhere. We have already shown that the individual or personal side of historical investigation is applicable to a small extent only, on account of the loss of authoritative power connected therewith. The same effect, but to a much less degree, is experienced also from inquiry into the history of principles. A distinct symptom of this is the difference in the readiness to use this method, as exhibited by theoretical writers and the practice of the courts. Comparatively speaking, the latter make conscious use of it much more rarely. The native domain of the historical method is found in theoretical treatises.
This is manifestly because the courts are much more sensitive to the loss of authority produced by giving historical reasons for a decision. How would it do for a judge to base his decision, for example, on a criticism so merciless and far-reaching as that which Unger directs against the Austrian Civil Code in his "System des osterreichischen Privatrechts"? To give an illustration: Unger proves, by historical investigation, that the concept of "Verjahrung," as defined in the Code,123 is only an arbitrary collection of various legal institutions, unconnected by any logical tie, such as limitation of actions, "usucapio libertatis," non-user of servitudes, adverse possession, and others. This was based on a misunderstanding of the term "praescriptio" as used in the Roman law. Hence Unger naturally aims to limit each of the different provisions comprehended in this section to the field to which it belongs historically. He specializes and differentiates. No matter how well taken his criticisms may be, a judge endowed with common sense is likely, even if he accepts them, as far as possible to avoid introducing these historical arguments into his opinions. For he could not well characterize a valid statute as the product of error and superficiality without undermining the authority of his own decree. Therefore he will in all probability prefer some other argument, such as one based on the systematic method.
123 OBGB Sec. 1451; Unger, "System,' Sec. 104.
The principal field of conscious historical investigation is the history of legal theory, the influence of which on legal practice is often no more than indirect. It is true, however, that in the practice of the courts also the tendency towards conservatism inherent in all juridical thinking does not fail to show itself. It does take forms different from those of conscious historical research. For instance, it becomes manifested in clinging to authorities and precedents.124