This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The method of interpretation formerly prevailing was nothing but one great error.5 It failed to recognize that every work of the intellect is the product of social forces, and also that the contents concealed in the written text are of infinite extent, and that the idea contained in it has a life of its own independent of the person who thinks or expresses it. In an attempt to make the idea the mere slave of the will, this method led to the conclusion that whatever the legislator had intended was the law. That, however, is utterly wrong-headed and inconsistent with the history of human thought. As a consequence the actual intellectual content was substantially cut down and nothing of it was accepted as having been actually expressed but what the persons connected with the act of legislating had actually comprehended and by an act of will put into effect. The result was a restriction of the law. The place of systematic consistency was taken by historical whims and individual crotchets.
5 The germs of correct notions may be found in Schaffrath and von Hahn; but Schaffrath's arguments were declared to be actual nonsense by the reviewers, while von Hahn was combated by Goldschmidt and others.
Such a method of interpretation is a mistake even if we assume the legislator to be an absolute monarch whose mere will is law. Truly such a one would be at liberty, after giving a law, to interpret it by a second, declaratory one. Such an interpretation, however, would be effective not because it made plain the thought of the first act, but because it is a new act. If, however, the constitution of the government were such that even this absolute ruler were at least bound to observe some form, such as for instance publication, before his will became law, it would follow that at least his private writings or diaries could not be used to help interpreting his act.
In our modern constitutional States, however, where there are several coordinate branches of the legislative power, this method is quite intolerable. Here, whenever alaw is adopted, all that is really agreed upon is the words. For among those who have anything to do with the passage of the act frequently something different is understood by each. Even within one of these various bodies that must give their assent, there may be several groups or parties, each understanding something different by the same words and agreeing only because of their different understanding. If one were to insist seriously, in such cases, that the intention of the legislators must be followed, one would have to arrive at the conclusion that on account of the different meanings attached to the words by different members of the legislative body the act had really not been adopted at all. That is so absurd a conclusion that it is at once rejected, although there have been a few fanatics of logical consistency who have actually dared to accept such a result. The only wav out of this dilemma was by fictions and arbitrary assumptions. Especially this assumption has been a favorite, that anything stated in the "motives"6 of the Government and not expressly denied by parliament is taken for agreed. It is also said that anything asserted by a member and not contradicted must be held to be the unanimous sense of parliament. Such theories resulted in the most startling exaggerations of the importance attached to the preliminary utterances made regarding an act before its passage. These propositions, however, are all wrong. Whether a thing is said or not in debate depends on many accidents. More importance than to any intention to agree, may have to be attached to the fact that a voluble orator suffered with catarrh, that some member of the opposition had liver complaint, or that the attractions and diversions of the capital were too strong for others. Surely it would be a strange method of interpretation by which the validity of law might depend on some parliamentarian's state of digestion. Many a speech was left undelivered on account of the carrying of the previous question, or because some member suffered with fatigue, or because he was kept in conversation in the lobby. When you take a look at actual life, all logical devices of the sort described are seen to be futile.
Accordingly, declarations in reports or the debates in parliament cannot be of much importance for discovering the true meaning of the law; at most they may serve to show the state of public opinion or the wishes of substantial elements of the people. As far as that goes, however, such declarations are no more significant than any
6 ["Motive" is the term given in German parliamentary practice to the explanatory report accompanying a bill introduced by the Government.- Transl.] other evidence of what the public are thinking about. Some article in a newspaper, or some book that exercises a determining influence on public opinion, may often be of far more importance for such a purpose than anything said in debate or reports. The publication of such debates and reports may be interesting because the state of feeling and opinion is reflected therein, which is always instructive from a general point of view. For the interpretation of the statute, no particular importance ought to be attached thereto. The danger of abuse of these publications is constantly greater than any utility they may have. Therefore it would be better always to let the statute be promulgated without allowing the public to see any of the preliminary reports. This would seem desirable in connection with any statute, but especially in regard to the Civil Code, the report of the preliminary discussions on which is not even official and is poorly worked out in every respect. The Supreme Court says about this report7: "Moreover, the report . . . cannot be decisive of the true meaning of the statute. It is a private work and does not originate with the legislative power. It was not intended, nor is it authorized, to declare the meaning of the statute." Now, then, why was that report ever published?