It would be easy to give to the remarks made in the foregoing chapters a wholly mistaken meaning. They might be taken for a feeble attempt to introduce into the theory and terminology of the administration of law, as it has been sanctioned by the usage of centuries, an innovation claiming to create a new epoch. Nothing is farther from my mind than so arrogant an undertaking. Nobody can be more remote than I from the Utopian assumption that bodies of thought like this which has maintained itself through the stress of time and found practical application may consist of nothing but errors and misconceptions that some "discovery" can remove.
The fact that the prevailing theory of interpretation refuses to recognize anything but formulated legal rules and the facts and circumstances of a specific case, must from the point of view of the positivistic principle of research be considered itself a social and historical fact standing in need of explanation and reduction to its cause, rather than criticism or propositions of reform. The same is true regarding the observation that juridical thinkers are given to ignore the whole intermediate field of ethical, economic, political, and other social ideas, as well as the forms in which these manifest themselves, in other words all the phenomena of projection; or the conception that the whole of a jurist's task is comprised in finding the true and correct meaning of formulated rules and in bringing the facts of each specific case either directly under some such rule or under the logical conclusions that may be drawn from such a rule. And finally it is true also of the fact that a legal terminology corresponding to these conceptions has been familiarly used for centuries and still prevails although many of the defects of this theory have long been recognized. All this, however, is no reason why one should not as far as possible become conscious of the peculiar characteristics of these facts. Some of these characteristics have been suggested in this work, and we have tried to show especially the places where the prevailing theory harmonizes but partially with the real, empirical, demonstrable actuality of things, notwithstanding the fact that modern legal science likes to boast of its purely positivistic character. Aside from the satisfaction of purely scientific curiosity, our suggestions have no aim but to arouse a desire for explaining and justifying such discrepancies. We all know that it is sometimes much more difficult to understand that regarding some subject-matter there is something which needs explanation than to find the answer after the problem has been comprehended. That is the case regarding juridical thinking. From the first day when he begins the study of his profession the lawyer is impressed with the high authority attaching to the prevalent theory of interpretation, and what is even more important, he meets so constantly with turns of phrase and forms of thought corresponding to this theory in the treatment of specific cases, that by long habit that wonder which is the source of all inquiry and conscious understanding becomes totally extinguished. Habit and the sense of being certain that among lawyers at least his way of proceeding will not be questioned make him forget to ask what reality there is behind such often used expressions as intention of the legislator, "ratio juris" and the like, or to what logical principle the numerous bold conclusions and inferences he draws may correspond. Soon he believes without test or examination in their truth, especially because it is quite correct that such expressions and forms of thought do correspond to the most typical among the cases that come before him. For the trouble with them is not so much their essential lack of verity as their incompleteness, their disregard of important transition zones. Now, after one has comprehended this inexactitude, one is confronted with a question that demands solution. That question is, Why are these inexact forms of thought, phrases, and expressions employed in legal science?
We have already observed that it is easier to answer this question than to propound it. The answer is found in the psychology of the European administration of justice.
When an injured party appeals to the court he has in mind, as the reason why it is the duty of the judge to interfere, not his economic advantage, nor the principles of ethics or similar things. Nor does he think of the greater personal sagacity and the greater experience of the judge, by which he may be able to find a way out of a tangle of conflicting wills even where the parties cannot see a solution. A European judge is no Oriental sage who is to point out the right course to the parties by virtue of his own higher wisdom. The only authority on which everybody relies, when they assemble together, the injured party and the wrongdoer, as well as the judge, is exclusively and solely the will of the State, embodied in the laws that have been broken. This being so, the judge would hardly supply the wants of the parties if he allowed any doubt to arise but what these commands of the State are really sufficient to settle every contention. Suppose that a decision were to read something like this: We cannot be quite sure what the legislator had in mind regarding the solution of this particular conflict, or whether he ever imagined that one would arise in this particular form; but making use of the provisions of the law on the one hand, and relying on the other hand upon traditions, economic needs of the community, ethical sentiments, popular customs, and so forth, we hold that the proper way for you to act is so and so. A decision of that sort would not be a legal decision at all. The parties would simply reply, that is not what we have asked you to tell us. True, some will deny that a clearer conception among the laity regarding the true process of arriving at legal (and for that matter, ethical) judgments, and the influence social forces exercise thereon would destroy the authority of such judgments.186 The inexactitudes of the theory of interpretation, however, would seem to prove that proposition.
186 See Merkel, in Holtzendorff's Enzyklopadie der Rechtswissenschaft, Sec. 14, in controversy with Kirchmann and Ree there cited.
This social want it is, rather than the positive recognition of the true condition of things, which has imbued the traditional juridical forms of thought with life and created the theory corresponding with them.
This social want requires that every decision shall take on the appearance of a necessary consequence of some legal rule, arrived at by strictly logical deduction and subsumption. It makes no difference how many factors other than the commands of the State have contributed to the result. Even analogy must clothe itself in the guise of some further logical consequence of a "latent" legal rule. It is for the purpose of supplying this social want to the greatest extent possible, that the "will of the legislator" was deprived of every semblance of reality, or that the inquiry into the intention of the parties is pursued far beyond the limits where the possibility of knowledge ceases.