245 gomery’s theory is based on the German method of interpretatio logica and subjective interpretation. Both parts of interpretatio logica — the grammatical and the logical interpretation - aimat the same target: they seek to clarify the lawgiver’s intent. As in the theories of Montgomery’s German models some decades earlier, logical interpretation is not to be confused with logic in the modern sense of the word; instead, the termrefers loosely to other than grammatical factors, “that must become decisive for the understanding of the statute’s contents,” such as a statutory norm’s relation to other norms, ratio legis, legal historical arguments and travauxpréparatoires.^^ Regina Ogorek has studied the development of legal interpretation in eighteenth- and nineteenth-century Germany. In their statutory interpretation, both subjective and objective theories relied on interpretatio logica, which was to rely on both grammar and logic {“vel grarnmatica, vel logica”). It was up to the interpreter to extract the true meaning of the legal text - or the meaning of its giver - by using devices such as systematic, historical and political arguments. According to Ogorek, interpretatio logica allowed itself to be used by all nineteenth-century views on interpretation. Unlike Schroder, Ogorek sees the shifts in the interpretation theories as not reflecting changes in the judge’s interpreting powers. In fact, already in its subjective form, the method oi interpretatio logica allowed the judge to depart widely enough from the wording of the statute. In this sense, the shift to the objective theory of interpretation represented no real change in the judge’s law-giving powers. It is the shift from the statute given by a sovereign to that produced by parliamentary decision that the substitution of the legislator’s will for the “will of the statute” mirrors. Ogorek goes on to claim that the objective theory’s contribution to the methodology of judicial decision-making was in fact nulle.-’^ Should logical and grammatical interpretation lead to conflicting results, an unclear wording had to yield, for “words are not anything else that the formto express that which the lawgiver really has wanted to say and which, therefore, despite the inadequacy of the expressions, ought to be recognized as law.” This kind of “changing interpretation” should not, however, lead to an interpretation contrary to a clear wording of the statute and cannot be based on arguments of expediency, justness, or consequence only.^° Sometimes it could happen, according to Montgomery, that in a statute a lawgiver had described only the most common or the most important situation at the time of the statute’s giving, without wanting necessarily to rule out other situations. If this was the case, the statute could be interpreted as applicable to the situation at hand {uniuspositio non est exclusio alterius), but only if the interpretation had “clear Montgomerv 1889 pp. 85-90; see Ogorek 1986 pp. 125—126. Ogorek 1989 pp. 26-37. 30 “[0]rden dock icke äro annat än formen för uttryckande af det innehall lagstiftaren verkligen velat hafva utsagt och somderföre vid uttrvckets bristfällighet bör såsomlag erkännas.” Montgomery 1889 pp. 92-94.
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