2. Interpreting Statutes

Another consequence of the then prevailing attitude was the rise of literalism in the theory of statutory interpreta­tion.⁴²³ This literalism stood in marked contrast to the liberal and flexible approach—prevailing until far into the eighteenth century^[549]—that had been characterized by an interplay of individual legal maxims (regulae iuris)^[550] that aimed at 'grasping the force and tendency of a statute rather than sticking to its words'^[551] and that was based, ultimately, on aequitas and publica utilitas.^[552] The very same two phases can be found in the history of statutory inter­pretation in England.

⁴³ⁿ Baker (n.

⁴³¹ For references, see Baade (n. 426) 65 ff.; Vogenauer (n. 425) ch. 5, E. IV. 2.

⁴³² See Zwalve (n. 126) 447 ff.; Reinhard Zimmermann, 'Statata Sunt Stride Interpretanda? Statutes and the Common Law: A Continental Perspective', (1997) 56 Cambridge Law Jotimal 315 ff. with further references.

⁴³³ See Ej/stoit v. Slmili (1574) 2 Plowd 459, at 465 (CP): 'it is not the words of the law, but the internal sense of it that makes the law, and our law (like all others) consist of two parts, viz. of body and soul, the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law, quia ratio legis est anima legis. And the law may be resembled to a nut. which has a shell and a kernel within, the letter of the law represents the shell, and the sense is the kernel, and as you will be no better for the nut if you make use only of the shell, so you will receive no bene­fit by the law, if you rely only upon the letter, and as the fruit and profit of the nut lies in the kernel, and not in tlie shell, so the fruit and profit of the law consists in the sense more than in the letter. And it often happens that when you know the letter, you know not the sense, for sometimes the sense is more confined and contracted than the letter, and sometimes it is more large and extensive.' Gratiani.⁴³⁴ The 'equity of the statute' derives from the medieval notion of aequitas which, in turn, was ultimately based on Aristotle's Nicomachean Ethics.⁴³⁵ Blackstone in his Commentaries⁴³⁶ presents a summary of the chapter on the interpretation of statutes in a contemporary translation of Pufendorf's De Jure Naturae et Gentium⁴³' Even civilian doctrines like the distinction between interpretatio extensiva, restrictiva, and declarativa were received in England.⁴³⁸ Thus, it is no exaggeration to state that, as far as statutory interpretation is concerned, England was for many centuries a province of the ius commune.⁴³⁹

As in Germany, though about fifty years later, the age of equitable interpretation was followed by an era of strict literalism,⁴⁴⁰ in which judges saw themselves as 'philolo­gists of the highest order'^[553] and preferred to be 'accused of a narrow prejudice for the letter of the law, than set up or sanction vague claims to discard it in favour of some higher interpretation' ^[554] It was mirrored by the rise of the doctrine of stare decisis and rooted in the same ideological soil.