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The Green Bag
mean on a point which was present to its mind, but to guess what it would have intended on a point not present to its mind had the point been present.
law-maker, but they are to be interpreted socio logically, they are to be interpreted as products of the whole people, whose organ the law-maker has become.
In other words, courts are driven to employ selective interpretation because of the absence of any legislative inten tion how a specific matter should be treated or because they possessed at best only a hazy intention; and it is the duty of the courts to say, not by a process of loose speculation, but with the utmost care and deliberation, what meaning must be supposed to underly the statute. / ^ It might be supposed that laying down a definite criterion by means of which the intent of a law may be dis covered would place in the hands of the interpreter an instrumentality which would make possible the substitution of analytical for selective interpretation. That end is to be attained, however, only if two conditions are fulfilled: (1) the criterion must itself be a valid analytical formula, and (2) the meaning unearthed by the application of this test must be | certain^ and not uncertain. Neither of TKeseTconditions appears to be realized in Kohler's recipe : 4
This proposal that the interpretation of law be treated as tantamount to the interpretation of the parent culture of which it is the offshoot should not be permitted to obscure the complex nature of culture, which is by no means so simple a thing as to fuse all antagonistic elements in one great stream, so as to enable us to say in every case what the actual thought of a given time is or was. On some questions no doubt there would sometimes be one fixed intention, em bedded in the culture of the time, which this historical-sociological method would bring to light, and then a purely analy tical interpretation would be possible. Equally if not more often, however, the interpreter would experience perplexity in unraveling the problem; candor would then direct an analytical inter pretation which would itself mirror the complexity of the situation and yield no decisive result of any juridical utility. The interpreter would still be compelled to fall back upon selective interpretation in prosecuting his sociological inquiry. Can we, however, treat Kohler's criterion as an analytical formula? Is it scientific to urge that a law be studied only in relation to the culture in which it had its origin? The conception of origin is of itself vast, stretching back into the limitless void of antiquity, and if we are to trace one of our laws back to Magna Carta, and construe it in accordance with this formula as a product of the culture of King John's reign, how can we disregard the earlier origins of the clauses of Magna Carta and the cultures from which they sprang? The Kohler formula is his torical and retrospective, it looks back to cultural origins, rather than to the
. . . the law-maker is the man of his time, thoroughly saturated with the thoughts of his time, thoroughly filled with the culture that surrounds him, ... he works with the views and conceptions that are drawn from his sphere of culture, ... he speaks with words that have a century of history behind them and whose meanings were fixed by the sociological process of a thousand years of linguistic development, and not through the personality of the indi vidual. The opinion that the will of the law maker is controlling in construing legislation is only an instance of the unhistorical treatment of the facts of the world's history and should disappear entirely from jurisprudence. Hence the principle: rules of law are not to be inter preted according to the thought and will of the 'Pound, op. cii., p. 379.
