This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The law stands in a peculiar relation to the phenomena of economic life. On their face, the latter are nothing but the inert, dependent subject-matter which the law rules and governs. The usual point of view of lawyers is that economic phenomena, such as barter, sale, money, commerce, capital, are ruled by law without inherent activity. Law determines what shall be money, what is to be the manner of barter and sale, or how commerce is to be carried on. Modern social science has the merit of having demonstrated136 that this appearance of the complete dependence of economic phenomena on our ideas regarding the law is in accordance with truth only to a limited extent. In all other cases, however, it is deceptive, and the reverse is true. The economic factor is for the most part the more powerful. Legal rules are frequently, or according to the materialistic school constantly, nothing more than the sanction or expression of a particular form of social structure, and especially of the conditions under which production is carried on. Barter, sale, commerce, the circulation of money, would not cease to go on in forms similar to present ones, even if suddenly all laws regulating them were repealed. Legal science also has recognized that even those legal rules which at first glance have nothing at all to do with economic matters, conceal a kernel composed of some economic interest of the people or a portion of the people.137 This interest may often assume shapes difficult of recognition, but the legal rule draws its life from the value and importance of such interest. This connection is commonly acknowledged when there is a question of adopting some rule, within the meaning of the statute, the acts of the assistants "are to be taken, in law, as the acts of the contractor, so far as they relate to his dealings with the customer." This is justified because the contractor has taken part in the transaction taken as a whole.139 One will scarcely deny that such is not the natural, nor probably the historical, meaning of the provision; and if the authors of the Austrian Civil Code had really thought of these distinctions and intended to draw them, they would no doubt have indicated that fact in some manner. The case makes clear, however, how "interpretation" adapts itself to the lines drawn by the economic structure of society. It shows also that the real reason for the narrow construction mentioned above is to be found in such adaptation and not in the recognition of some positive intention of the legislator.
136 How completely an understanding was formerly lacking of any connection between law and other sides of social life, appears, i.a., from the following in Voltaire's "Traite de metaphysique" (1786 ed. of works, vol. 32, p. 68: "La plupart des lois se contrarient si visiblement, qu'il importe assez peu par quelles lois un Etat se gouverne; mais ce qui importe beaucoup c'est que les lois une fois etablies soient executees. Ainsi il n'est d'aucune consequence qu'il y ait telles ou telles regies pour les jeux de cartes; mais onne pourra jouer un seul moment, si Ton ne suit pas a la rigueur ces regies arbitraires dont on sera convenu." Against this, the editor of Voltaire protests by producing this argument drawn from the law of nature: "Nous croyons au contraire qu'il ne doit y avoir presque rien d'arbitraire dans les lois. La raison suffit pour nous faire connaitre les droits des hommes."
137 For instance, the maxim "ignorantia juris nocet"; or the principle of procedure that parties must carry on their own actions. Comp. Menger, "Das biirgerliche Recht und die besitzlosen Klassen." but disregarded when a rule is to be interpreted. Yet there seems to be no doubt that the influence of economic conditions is exerted strongly in the interpretation of formulated law also. Especially is there a tendency, analogous to that already treated in an earlier section, to maintain relations of economic power intact, to resist needless changes. Hence projection is kept, as far as possible, within lines drawn by the economic structure of society.
This is a tendency which has been recognized in part in a number of formulated rules of law, e.g. in Sec. 915, line 1, of the Austrian Civil Code. It is also at the bottom of the "safety-valve concept" known as "causa," which will be touched upon below. It may also be demonstrated to exist elsewhere, although usually it is concealed in an extraordinary manner. Let us look at a few more examples:
An Austrian Civil Code section138 provides: "A custom workman or contractor must not relet the work ordered to be done to some other person except in cases of emergency, and even in the latter case he remains responsible for any negligence in the selection of such person." This provision, in its primary sense, does not harmonize with the economic structure of modern society. It ignores the unity of economic enterprises, such as a factory, it puts obstacles in the way of dealing with such enterprises, and thereby jeopardizes the benefits of the division of economic labor. In practice, these disadvantages have been consciously recognized, and the meaning of the provision is being narrowed as much as possible. Especially has it been construed in such a manner that the assistants of the contractor, his workmen, journeymen, and helpers, are not considered persons different from himself, they are not "other persons"
138 OBGB Sec. 1161.
According to Stubenrauch's Commentary140 section 440 does not presume that the purchaser of real property, when he causes a record of conveyance to be made, has no knowledge of a prior conveyance to another. This proposition is still generally disputed. In the practice of certain crown lands and districts, notably that of Galicia, the opposite is established beyond every possible dispute, contrary to that interpretation of Sec. 440 which is historically the most plausible and which has been accepted by Stubenrauch. Why is that? In the crown lands and districts in question the registered records of title are not in good order, very often the actual condition of the title does not appear from the records,141 and on account of these discrepancies a strict adherence to the record would produce changes in the title for which, from the standpoint of economic fact, there would be no justification. A vivid realization of these conditions and an intention to prevent such changes are obviously forces sufficient to render an acceptance of Stubenrauch's construction utterly impracticable.142