making such product.The argument advanced byWächter is a perfect expression of a truly historical approach to statutory interpretation, whereas the ideal of Montesquieu is an expression of an unhistorical approach.This is the notion that every law has one, and only one, true meaning - and the task of the judge is to discover it.An historical approach, on the other hand, takes into account that every interpretation is a more or less foreseeable result of a human act.25This explains why lawyers and judges need a legal methodology, while at the same time setting out why it is the exclusive task of judges and legal scholars to formulate the content of such amethodology.The mere fact thatWächter addressed the problem of legislative history, and chose to emphasise the role of professional judges as mediators between legislator and citizen in this context, places his contribution (in my view) within the well-known theoretical framework of the historical school, despite the fact thatWächter until this day has never been numbered by legal historians among the representatives of this school. Wächter’s argument is known today primarily as a contribution to the debate of subjective versus objective statutory interpretation. This is not the place to recapture that debate. However, two conclusions may be drawn from the historical contention ofWächter. First, anyone who questions the wisdom of using legislative history at all must also query the concept of professionally trained lawyers, endowed with not only sources of law, but also a special method of solving legal problems, including legislative history, which do not have to be available and above all not understandable to people who have no legal education. Second, nineteenth century legal science, and particularly the historical school, may in some cases provide more relevant answers to judges and lawyers today than modern legal theory.Wächter’s argument does not provide answers to every modern problem of making use of legislative history, re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 210 25 The most famous expression of an historical approach to statutory interpretation is the Interpretationslehre by F. C. von Savigny, System des heutigen römischen Rechts (1840), bd. 1, p. 206. Savigny realised that interpretation was not about discovering a pre-fixated true meaning, but that the meaning is the result of decisions made by judges and scholars. Interpretation should therefore be viewed as an “art form” (Kunst) and a “spiritual activity” (geistigeThätigkeit), and thus as a continual process. Savigny, to my knowledge, did not address the problem of legislative history.He did, however, consult legislative history when it was available, and regretted that the materials of Allgemeines Landrecht were not; see Vom Beruf (1814),Thibaut und Savigny - Ihre programmatischen Schriften, (hrsg.) H.Hattenhauer,2nd ed.,München 2002, p. 99.
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