This section is from the book "Science Of Legal Method", by Ernest Bruncken. Also available from Amazon: Science of Legal Method.
The Romanizing doctrine of interpretation posits as its goal the ascertaining of the meaning (intention, contents, will, "mens," "sententia," etc.) of the legal rule. It lays particular stress on finding the relation between the "sense" and the "text" of a
36 "Aequitas" means a fair consideration of individual differences.
37 Comp. Codex Theresianus, v. 86: "Where the reason for a law is the same, the law must be the same." ("Ubi eadem legis ratio, ibi eadem dispositio.")
38 Comp., for instance, the chapters on the theory of interpretation in Unger's "System." formulated rule. This relation differs, according as the ascertained sense is coextensive with the text, or diverges in varying degrees. Thus is obtained the well-known scale, as follows:
1. "Interpretatio extensiva," where the sense is broader than the text.
2. "Interpretatio lata," where the text is ambiguous and is liberally construed.
3. "Interpretatio declarativa," where text and meaning are coextensive and unambiguous.
4. "Interpretatio stricta," where the text is ambiguous and is construed strictly.
5. "Interpretatio restrictiva," where the meaning is narrower than the text.
The whole taken together constitutes "interpretatio declarativa" in its wider sense.
Some add to the scale the case where the meaning differs from the text ("interpretatio obrogans," or corrective interpretation); others deny the propriety of this subdivision. The case is really a combination of cases one and five.
This table ought to be supplemented, however, by putting as the first subdivision interpretation by analogy, and as the last subdivision interpretation by solving an antinomy. The former exists where notwithstanding a broad interpretation the meaning will not cover the given state of facts, and yet the rule is applied. The other is used where a given state of facts will be fitted equally by two possible meanings of a rule, even after the rule has been strictly construed. These two subdivisions are formed, not by merely considering the relation of text and sense, but by considering also the relation between the state of facts and the sense. For this very reason the use of these forms of interpretation is apt to cause the most obstinate contentions, as will be further considered below.
The scheme of sevenfold subdivision of the results of interpretation, thus arrived at by adding interpretation by analogy and by solution of antinomies, is exhaustive and covers the whole field, as will appear from a logical examination. For it runs through all the intermediate steps from the case where even the widest possible sense given to the text is insufficient to the case where even the narrowest meaning of which the text is susceptible still leaves more than one possible application of the rule to the facts.39