But behold! This apparently self-evident conclusion, which some jurists seized upon with eagerness, met for the most part with nothing but sceptical distrust and open opposition. People reject and struggle against this sort of substantiation of the person of the legislator, against any tangible description of the subject-matter of legal inquiry. Another conception is opposed to it: the legislator, it is asserted, does not at all intend this or that meaning; what he "wills" is a law in general, only where the 'principia cognoscendi,' the data for discovering the sense, can be obtained from the law itself. That alone is positive law which has been promulgated as such." Comp. with this a remark of Unger's: "Thibaut's self-limitation was of course nothing but a matter of theory."
109 Goldschmidt, "Handbuch," vol. i, Sec. Sec. 310 seq.
and the law as thus given is the only thing with which the lawyer has to deal.
Thus Hahn has said110: "Law is not what the legislator intends, but what he has solemnly, by his statute, declared to be that which he intends." And very distinctly Janka asserts in his book on criminal law111: "Interpretation has to deal with the statute, with the legislative expression, and not with the legislative intention that may lie behind the expressed declaration. If the legislator has intended to express something different from what he has expressed, or if he has intended to express something he did not express, yet, even if the divergence were conclusively proven by extraneous evidence, that which has been expressed is in effect in the form in which it is expressed." Between these extremes, various shades of intermediate opinions arose. Pfaff and Hoffmann, in their Commentary, drew up a complete scale of opinions, beginning with that of Sieben-haar, and running on through those of Thol, Unger, Hahn, Menger, Pfaff and Hoffmann themselves, to that of Goldschmidt. This is the celebrated debate on the effect of the reports of committee proceedings, into which I propose by no means to enter in this place.
For in accordance with the principle of positivistic investigation for which I am contending it is quite enough for me to establish the fact that there is a persistent disagreement on so fundamental a question between lawyers of eminence, not one of whom can be charged with superficiality or ignorance, and that this disagreement cannot be removed by discussion. The very existence of such a disagreement is proof that neither of the extreme opinions corresponds to the relations of social power. Neither can be correct. The existence of this dispute appears to me to express the following fact, which is often misunderstood and will be more fully discussed in the succeeding chapter. It is that the juridical truth regarding the meaning of a legal rule may sometimes, but by no means always, be identical with the historical truth; and this for the reason that the results of an historical inquiry into the law will lose their authoritative convincing power precisely in the degree in which they attain positive certainty, whenever the inquiry has started from the wrong point, or has gone beyond the proper goal. We have here an automatic safety appliance against mere dry-as-dust erudition. The results of interpretation, gained in this manner, may actually lack precisely that authority, that very specific element by which the command of the law is differentiated from every other form of opinion, and by which it does become the rule of life. There are limits to the propriety of inquiring into what lies behind the statute, and a good test of what is still proper is found in what the courts are willing to admit.112
110 "Kommentar zum Handelsgesetzbuch," vol. i, Sec. Sec. 48 seq.
111 "Oesterreichisches Strafrecht," Sec. 23.
In the controversy we have referred to this process is exhibited in the plainest manner. What good does it do, if it is proven in the most convincing manner that Hye, the author of the Penal Code of 1852, or Baron von Hahn, or Sonnenfels, the two who wrote the draft published in 1803 from which a certain provision was taken into the Penal Code of 1852, connected with this provision a special meaning which it is not possible to extract from the statute itself? Their opinion is not likely to prevail on the court as an authority in the same way as a clear provision of the statute. The judge will feel that he is at liberty to ignore such an opinion without being chargeable with a disregard of the statute, and he will ask himself first of all whether there is any need of considering it at all. The historical showing has not solved the uncertainty regarding the meaning, it has merely changed its form.
112 There is not very much of this, however, so far as the history of personalities as distinguished from the history of principles is concerned-Thus some people complain (e.g. Ofner in "Juristische Blatter," July 27, 1902) that in practice the courts disregard the record of proceedings of the committee to draw up the Austrian Civil Code, which was then recently published. It would seem, however, that a judge would argue like this: The fact that the legislator during so many decades kept these proceedings secret, seems to indicate that he himself did not intend that the courts should be guided by them. He must have meant that the law should be applied as could be done with regard to the text itself.
Dernburg, in his "Pandektenrecht"113 advises students to familiarize themselves with the special peculiarities of the various Roman jurists, because thereby a good many misapprehensions may be avoided. Manifestly he must have had in mind the style of the various passages in the "Corpus Juris," for it would be difficult to imagine how any party to an action could support his side by showing that Alfenus Varus had a comfortable, phlegmatic temperament or that Labeo was the type of a bureaucrat. Surely, there would be no answer to such argument except an indulgent smile.
In brief, the "legislator," who has been so much sought for and whom some believe to have found, is still hidden in darkness. Lawyers daily and hourly profess to discover his will, his intention, his reasons - -but none of them can tell what particular, tangible creature on earth he means when he speaks of him.114 The truth of it is that it is impossible to point out who the legislator is. For it is precisely the mysterious indefmiteness surrounding him that makes it possible, without being evidently inconsistent with actual life, to represent as the exclusive function of legal science the discovery of the will of the legislator. That personage is no real being at all, and one might just as well describe most of the peculiarities of juridical thinking by saying that their object is the exploration of the qualities which lawyers are in the habit of ascribing to their "legislator."
113 Sec. 36.
114 How little that which lawyers mean by "the will of the legislator" has in common with anything actually existing in space or time, maybe seen from this, that at one time nobody hesitated to base even the whole of customary law on that very "will of the legislator." Recent theorists have just begun to balk at this absurdity. What we say in the text goes a little farther than that. The opposite paradox is represented by Frenzel ("Recht und Rechtssatze," Leipzig, 1902), who explains even the authority of statutory law by the customary law (section 77 and elsewhere) .
We may now recapitulate some of the truths we have tried to establish in the preceding discussion, and which appear almost self-evident:
The function of juridical thinking is by no means exhausted by the exploration of a will that once had actual existence, i.e. the will of the legislator. On the contrary, the immensely greater portion of the facts and groups of facts with which lawyers have to deal were never anticipated by the intention of the legislator, nor were they part of the content of his mind, in such a way that they could be simply subsumed under his expressed concepts.115 The legislative will throws a bright light on just a few points in the vast field of life. The rest of the field cannot be brought within the illuminated area by prestidigitatorial tricks, of purely logical operations like deduction, the finding of the "ratio legis," etc.116 The illuminated places have but to serve the function of centers of attraction or convergence. The attachment to the will of the legislator (if that term is intended to have a positive meaning at all) of new facts lying within the zones of transition, which we have termed
115 Or instead of subsumption, possibly deduction. About this, further on. For the present we shall ignore a possible multiplicity of legal rules.
116 There are technical reasons why, in legislation, the will of the legislator must not be expressed in very abstract and general form. Aside from the uncertainty of their application, there would be danger of the courts disregarding such rules as being "theorizing." Legal rules must be practicable. (See Jhering, "Geist des romischen Rechts.") projection, must be effected by means that have nothing to do with the legislative will.
The employment of analogies, however, has nothing anomalous about it so as to require a special and different explanation. It is nothing but a natural extension of projection, frequently proceeding by imperceptible gradations. It differs from projection in degree but not in kind.
We have not yet discussed the kind of mental powers which are employed in making a projection, but have already touched on one point. The work of finding the facts and that of discovering the rules of law (as you might say, the provinces of what is and what ought to be) are not strictly distinguishable. Especially, a considerable part of what is known as "internal facts" belongs to the field of juridical thinking proper.