This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
" Projection does not proceed in the same manner in regard to all concepts, principles, and institutions of a system of law. We have already seen (in Sec. 15) that the reason for the vagueness of concepts and the transition zone surrounding the conceptual center lies in the great complexity of the phenomena comprehended in a general concept, especially in the case of social phenomena. However, all legal rules do not contain legal concepts having direct reference to social phenomena.163
162 "Vertrag," Leipzig, 1876.
163 Or to any other complicated phenomena. In the case of concepts dealing with social matters the uncertainty is greatest. Further, many concepts are not general enough, although the nature of law corresponds best to general concepts. For law is a general rule. There are some legal rules, however, which lack this general character; such are privileges, certain rules of public law, etc. - These deal with specific objects and therefore employ specific concepts. Here there can be no question of projection.
In addition to the fact that a majority of the concepts employed in the interpretation of legal rules are of a supplemental character only, it is a principal maxim of legislative technic, based on the uncertainty inseparable from the process of projection, that one must try to get along with as few of such general concepts as possible.164 Of course, in the nature of things one cannot avoid their use altogether. One might be tempted to overcome the uncertainty produced by general concepts by dividing the subject-matter of a statute into a large number of very special, narrow concepts. That would be a "casuistic" statute. However, it is well known that no casuistry, however detailed, can possibly do justice to the extreme variety of the phenomena of real life; there will be constantly new combinations clamoring for attention. Analogy and projection cannot be eliminated in this way; at most the province of the former will be enlarged at the expense of the latter. This is all the less desirable for the reason that the finding of an analogy will become more and more difficult in proportion as there are many particular provisions regarding details. Moreover, as you multiply the number of rules interconnected with each other, you increase the difficulty of bearing their mutual relations in mind, thereby making the finding of the proper rule and the work of "construction" (in the sense defined in Sec. 18, supra) more uncertain.165 A casuistic body of laws has and may easily be dissolved into concepts of the primary order from which they have taken their origin by conscious combination. They are capable of being "construed" and "deconstrued." Thus, for instance, the "formula hypothecaria" is an almost mathematically precise definition of the pledge concept.
164 The outward expression of this tendency is seen in the jejune style of statutes and the constant repetition of identical words and phrases. Lest its application be uncertain, a statute must not provide variety in expressions and designations, such as good style and the literary sense demand. Thus Unger ("Erbrecht," section 5, note 4) criticizes the Austrian Civil Code for alternating with certain expressions in sections 540 to 547, for the sake of euphony.
165 The mental phenomenon of projection may be observed, in consequence of the multiplicity and complexity of statutes, whenever the attempt is made to find a common term for a group of laws on the relations and rights created by statutes. The concept "officer," although it been justly compared to the Chinese mode of writing, which is so much less practical than ours. A body of general rules would still be necessary at least for the purpose of supplementing the casuistic provisions.
Each of the great legal systems aims to accomplish its purpose by combining and grouping the concepts, relatively few in number, which embody directly the phenomena of social life as they would appear if there were no laws. Legal rules and concepts of a higher order are formulated which have indeed for their subject-matter those unregulated phenomena of social life, but no longer do so in a direct or immediate manner. Their immediate subject-matter is rather rules of a primary order, or concepts in which such rules are contained or, to use the expression invented by Jhering, precipitated.166 The immediate content of the concept "law of things" is formed by the concepts property, servitude, pledge, and the like; again, the subject-matter of "pledge" is found in concepts like chattel, demand, satisfaction, transfer. Not until we have descended this scale do we arrive at terms and concepts of the primary order,167 the content of which is not denned by law but tries to express immediately some phenomenon of unregulated social life. For instance, taking the concept "thing": if that also has been legally defined, the primary concepts would be those employed in making that definition. In systems of law that are technically well worked out, the rules and concepts of the higher orders have well defined forms, does not refer to a phenomenon of free social life but to certain qualities created by law in certain persons, has a rather wide zone of projection and uncertainty. Recently the courts projected the concept, in a prosecution for insulting an officer, upon the conductors of the Vienna street railway.
166 Comp. above, Sec. 6.
167 Eltzbacher is wrong when, in touching on this point, he denies all difference between concepts like "thing," or "conversion," and legal ideas such as "right of pledge" or "servitude" ("Uber Rechtsbegriffe," Berlin 1899, pp. 23, 33).
In this way we know precisely what is meant by "theft," to wit, the taking of a movable thing, not one's own, out of the possession of another, for the purpose of gaining an advantage and without the consent of the possessor. At first blush at least, the concept "possession" will also offer no difficulties. We know it means the actual power of disposal over a thing, exercised by a person "ammo dom-ini." As long as we remain in this field, where the applicability of concepts of the primary order does not enter into consideration, the principal task and the principal difficulty of the lawyer will be to find just what the legislator meant by the various concepts he expressed, in other words, to find the true sense and correct interpretation of the rules. Secondarily, he may encounter difficulties in finding what applicable rules there may be - in other words in knowing the contents of the statute. But the special difficulties of projection hardly come into play as yet.168
The difficulties of projection come forward after we have descended to the concepts of the primary order and now are compelled to proceed further to the phenomena of unregulated social life, for instance when we are called upon to say whether this phenomenon or the other constitutes an "advantage" or an "actual power of disposal" or an "animus domini."
Here for the most part the inquiry into the real, actual meaning of the rule can at best give us some slight hints. Here begins the field of projection, and we must be guided by social tendencies, linguistic usage, a variety of value judgments, opinions, and the rest; for here we find a multitude of boundary and transition phenomena. Here the old maxim asserts itself: "omnis definitio periculosa est, parum enim ut subverti non possit." In this connection one must even acknowledge that there is some significance in the observation of Nippel, which is almost naive as to form, when he says: Surely one cannot express the ideas of the legislator better by words different from those he has used himself. The uncertainty encountered at this point cannot be remedied by refinements of legislative technic. All the latter can do is to endeavor to confine the uncertainty, the necessity of resorting to projection, to a few broadly circumscribed concepts and thus to preserve the purely logical, self-contained character of all the rest. For any legal edifice, no matter how firmly it is constructed, must rest on the shifting surface of social life. Therefore it has need of some appliance by which it can adapt itself in part to its movements in order to govern it all the more surely. This condition of things is not always a cause of regret, as is shown by those cases where a statute intentionally fails to define one side or the other of some legal institution, in order to leave free play to the uncertainties of social influences. As far back as the Romans, any definition of "more" (regarding the effect of which there were different principles) was intentionally avoided.169 In a similar way, also, in the German Civil Code, a number of rules regarding "legal transactions" have been inserted, but a general definition of what constitutes a "legal transaction" has been intentionally omitted, so that the practice of the courts might be unhampered in elaborating the conception that is to support these rules.170
168 Cf. note 165 supra.
169 Dig. 22, 7: De usuris.
170 A mathematician might compare this to an equation with two variable quantities: Y = Fx.
At any rate, whether consciously or by some instinct, every system of law contains conceptions which become recognized by means of projection. Such concepts I should like to name "safety-valve" concepts, because they are comparable to safety-valves. In every code of departmental rules, every act for the regulation of public services, every book of police ordinances, you will find such provisions. In Germany, they are popularly known as "India rubber sections." Even in the field of private law,171 where for centuries talent and industry have been employed to throw light on all that is not clear, safety-valve concepts are found necessary. A few such may serve as illustrations.