connection between the law and the spirit of the people would be lost. Therefore,
codification should be preceded by historical research on the origins of law and the
reasons behind the law, hence the name of this movement of which Von Savigny
was one of the most important representatives, the Historical School.
In practice, this alleged relationship between the spirit of the people and the
developing law was maintained by legal scholars, who wrote comments on
theDigestand, in doing so, gradually adapted the law to the needs of society.
Development of the law in Germany was, as a consequence, driven by legal scholars.
At the end of the nineteenth century, the resistance against codification lost its battle against
the codification movement. In 1900 a codified German civil code, theB€urgerliches
Gesetzbuch, entered into force.1.5.2 Interpretation
Where the common law tradition takes cases as its starting point, the civil law
tradition that is dominant in the European continent focuses on reasoning on the
basis of rules. To allow legal decision makers to reach desirable results by means of
these rules, so-called canons of interpretation were developed through which the
results of the rules could be adapted to the needs of concrete cases.
The Literal Rule or Grammatical Interpretation It is sometimes necessary to
decide about the proper scope of application of a rule. For instance, does a rule that
forbids the presence of dogs in a butchery also apply to guide dogs? If an issue
arises about a guide dog in a butchery, it is necessary to take a decision whether
guide dogs are dogs in the sense of the regulation, and this decision should be
motivated.
One kind of reason to motivate the interpretation of a rule is that the interpreta-
tion matches the literal meaning of the words in the rule. Guide dogs are dogs,
aren’t they? Therefore, a rule about dogs also applies to guide dogs. The canon of
interpretation that states that rules should be interpreted literally is called the
“Literal Rule,” and the resulting interpretation is called “grammatical” or “literal
interpretation.”
The Mischief Rule or Legislative Intent Often, written rules are created to solve
some problems. The legislator meant to achieve particular results, and the rule was
seen as a means to obtain these results. If a legal decision maker gives the rule an
interpretation that makes it suit the intention of the legislator, he is said to apply the
Mischief Rule.
Suppose that the legislator created the prohibition of dogs in butcheries in order to prevent
unhygienic situations in food stores. He considered the case of guide dogs but nevertheless
decided not to make an exception, because hygiene was considered to be very important. If
a legal decision maker wants to follow legislative intent, he must interpret the rule to make
it also apply to guide dogs.1 Foundations 17