Unfortunately, the manner in which legal hermeneutics have "developed" in later times constitutes nothing better than a degeneration of this discovery of the Roman law. For the absolutism of the later Empire caused a radical change. Imperial omnipotence reserved to itself the interpretation of the law: "Inter aequitatem jusque interpositam interpretationem nobis solis et oportet et licet inspicere."28
23 Significantly especially in Cicero, "Brutus," 145, 198; "De orat.," i, 292; "Pro Caecilio," 57, 65, 77; "Pro Mur." 27; "De officiis." i. 10. 33. etc.
24 Roman terms for this (see Kipp, loc. cit.): "stricta ratio" (Dig. 11, 7, 43); "strictum jus" (Fig. 5, 3, 50, 1; 3, 5. 30; 23, 2, 67, 1); "rigor juris" (Dig. 40. 5. 24, 10); "suptilitas juris" (Dig. 39. 5. 25); "suptilis ratio" (Dig. 8, 3, 11); or simply "jus" (Dig. 15, 1, 32 pr., 39. 3. 2. 5).
25 Regarding the value attached to the "intention of the legislator" by Roman jurists, cf. Kohler's excellent compilation in Griinhut's Zeitschrift, vol. 13, pp. 1 seq., note 2.-Comp. also on this point, Regelsberger, "Pandekten," Sec. 35, p. 144, note 10; Austin, "Jurisprudence," vol. 2, 1027; Kipp, loc. cit. p. 7, note 17.
26 Dig. 11, 7,43.
27 C. 7, 14, 7; cf. also Const, de Conf. Dig. c. 18.
This proposition proved exceedingly injurious for the manner in which the Glossators understood the matter. Their firm belief in the absolute authority of the Justinian compilations of the law, their lack of historical knowledge, their scholastic habit of mind, and the exeget-ical manner of treating their subjects29 all kept them from independently penetrating the problem of the application of the law, just as they were kept thereby from an unbiased consideration of the leading principles of interpretation. In regard to this theoretical problem, as regarding everything else, the statements found in the Corpus Juris were treated like obligatory rules and incontestable truths. Thus in administering the law nothing was considered legitimate except a reference of the matter to some citation in the Corpus Juris ("authentic interpretation"), and nothing left to the judge but a purely declaratory interpretation. Accordingly the judicial function consisted in nothing more than the preservation and scientific exploitation of the law as it actually stood.30 This soon gave rise to the method of supplying new rules of law out of the existing system of legal rules.
The first scientific and systematic treatment of this rule is found in Donellus.31 His theory is properly the foundation of that traditional and accepted "logical exposition" which was later developed especially by Savigny. In sharp contrast to the Roman idea of "aequitas" this theory sanctions the notion that there are no omissions in the positive law, that the original and unchanged intention of the legislator is to be sought, and further, that for applying the law, formal dialectic logic suffices.32
28 Tendencies in that direction may be found in Dig. 15, 1, 32, pr.; Dig. 39, 3, 2, 5; in this connection, Windscheid, "Pandekten," vol. 1, Sec. 28, note 4, intimating that "the attitude of the jurist used to be much more independent than to-day." Contra, Kipp, loc. cit.; cf. also Pauly-Wissowa, loc. cit.
29Brie, "Gewohnheitsrecht," vol. 1, 96-97.
30 Cf. Stintzing, "Geschichte der deutschen Rechtswissenschaft," vol. 1 (1880), pp. 102 et seq.; Landsberg, "Die Glosse des Accursius," p. 25: "the purely deductive and strictly logical procedure which may be called particularly 'dialectics'"; cf. also Brie, loc. cit.; further, Falk, "Die Analogie im Recht," 1906, 24 et seq.
31 "Comentarii de jure civili," lib. 1, c. 13, Sec. 1, seq.
This method was especially followed by the Law of Nature school. In the face of their own fundamental principle,33 even the most radical protagonists of the Law of Nature advocate the identical logical method which we find among the glossators and commentators.
The historical school of jurists likewise, as far as our present problem is concerned, did nothing more than continue the doctrine of logical and pragmatical exposition. It was but lately that the traditional doctrine was elaborated, by Savigny and his eminent followers, into a complete theoretical system. "The days of this school are numbered," says Gmiir,34 but in the textbooks of the Civil Law and of the German Civil Code, as well as generally in systematic treatises on private law, its teachings still figure as the accepted doctrine.35 However, what we have said above shows plainly enough that this is not the Roman manner of applying the law but merely a degenerate form thereof. Such formal logic was alien to, nay, even despised by Roman jurists. It is the product of a development which gradually deviated from the fundamental idea of the Roman administration of the law.
32 Among the immediate successors of Donnellus (1527-1591) may be named especially: Forster, "Interpres sive de interpretatione juris libri duo," lib. 2, c. 12 seq. (cited from Otto, "Thesaurus juris Romani," vol. 2, 1733).- In regard to the hermeneutics of the canon law, which on the whole has the same result, cf. Reiffenstuel, "Jus canonicum universum," vol. 1, passim; and Schulte, "Geschichte der Quellen und Literatur des canonischen Rechts," vol. 1 (1875), 212-220.
33 According to the principles of this school, the law of nature, constituting the highest authority, ought to be acknowledged at least as subsidiary law. Obviously the method of interpretation appropriate to this point of view would be one in which the formulated law is supplemented from the outside, by means of the law of nature (cf. Pfaff-Hofmann, "Comment.," vol. 1, 194 seq.) In practice, however, this theory is never seriously applied. Even the most radical adherents of the theory, when they come to deal with interpretation in detail, present the same "dialectical method" we found above. Cf. Pufen-dorf, "De jure rationali et gentium," vol. 5, 12; also Zeiller, "Comment, zumost. BGB," ad. Sec. Sec. 6-7, who does not only defend all the fundamental principles of the traditional method but even calls the application of the famous section 7 "exceedingly problematical" (loc. cit. vol. 1, p. 66); cf. further, Winivarter, "Das osterreichische biirgerliche Recht," vol. 1 (1831), p. 82, note 2.- See also Gluck, "Pandekten," vol. 1, 205-301, and Rotleck-Welcker, "Staatslexikon," 517-518.