CHAPTER 

4 
Suggestions – 
Recommendations and 
Conclusions 
 CHAPTER 4
SUGGESTIONS – RECOMMENDATIONS
AND
CONCLUSIONS

SUGGESTIONS – RECOMMENDATIONS

Statutes are designed to operate over indefinite periods of time, so

they should be viewed in a continuum. An intention to produce an
unreasonable result is not to be imputed to a statute if some other
construction available.877 If the statutory provision is unambiguous and if
from that provision, the legislative intent is clear, we need not to call into
aid the other rules of interpretation of statutes. The rules are called into
aid when the legislative intent is not clear.

The Judge must not sacrifice the general to the particular. We must
not throw to the winds the advantages of consistency and uniformity to do
justice. Every judge consulting his own experience must be conscious of
times when a free exercise of will, directed of set purpose to the
furtherance of the common good, determined the form and tendency of a
rule which at that moment took its origin in one creative act.878 Whether
novel situations are to be brought within one class of relations or within
the other must be determined, as they arise, by considerations of analogy,
of convenience, of fitness and of justice.879 Judge must get his knowledge
just as the legislator gets it, from experience and study and reflection; in

                                                            
877
Artemiou v. Procopiou, (1965) 3 All ER pp.539, 544
878
Benjamin N. Cardozo, Ibid, pp. 103-104
879
Benjamin N. Cardozo, Ibid, p. 110

381 

 
brief, from life itself.880 Judges should decide by considerations of
convenience, of utility and of the deeper sentiments of justice.

A Judge must balance all his ingredients, his philosophy, his logic,
his analogies, his history, his customs, his sense of right, and all the rest,
and adding a little here and taking out a little here, must determine, as
wisely as he can, which weight shall tip the scales.881

The Judge should alone apply various principles of interpretation

of law to a given facts like a wise pharmacist who from a recipe so
general can compound a fitting remedy.882

There remains a percentage, not large indeed, and yet not so small
as to be negligible, where a decision one way or the other, will count for
the future, will advance or retard, sometimes much, sometimes little, the
development of the law. These are the cases where the certain element in
the judicial process finds its opportunity and power. In these cases, they
might be decided either way. The reasons plausible and fairly persuasive
might be found for one conclusion as for another. Here come into play
that balancing of judgment, that testing and sorting of considerations of
analogy and logic and utility and fairness. Here it is that judge assumes
the function of a law giver.883

There will be a court of justice which is not also a court of law.

There is always some notion of justice independently of legal rules. The
total exclusion of judicial discretion by legal principle is impossible in
any system.

                                                            
880
Benjamin N. Cardozo, Ibid, p. 113
881
Benjamin N. Cardozo, Ibid, p. 162
882
Benjamin N. Cardozo, Ibid, p. 162
883
Benjamin N. Cardozo, Ibid, pp. 165-166

382 

 
 Judicial interpretation can be creative, but, of course, within the
limits of the most rigorous discipline and in entire harmony with the
boundaries of statute law, and previous growth.884

Everyone of us has in truth an underlying philosophy of life. All

our lives, forces based on our instincts are in operation; and the resultant
is an outlook on life.

There are many situations, however, where the course of judicial

action is left to be determined wholly by the judge’s individual sense of
what is right and just.885

It must be remembered, however, that the courts have laid down,

indeed not rigid rules, but principles which have been found to afford
some guidance when it is sought to ascertain the intention of
Parliament.886 These rules do not override the language of a statute where
the language is clear; they are only guides to enable the Judges to
understand what is inferential here. In each case the Act of the
Legislature is all powerful, and when its meaning is unequivocally
expressed, the necessity for rules of interpretation disappears and which
is its vanishing point. These compendious rules of interpretation can only
be regarded as mere guides to the interpretations of statutes and ought not
be applied as if they were statutory clauses, enacted with all precision and
provisos of the legislation. The court should invoke whichever of the
rules produce a result that satisfies its sense of justice in a case before it.

                                                            
884
Mrs. Nellie Wapshare v. Pierce leslie & Co. Ltd., AIR 1960 Mal pp.410, 422
885
Roscoe Pound, Ibid, p. 245
886
Cutler v. Wandsworth Stadium Ltd. (1949) 1 ALL ER pp.544, 550 as referred to by
Dias, Ibid, p. 171

383 

 
 A court invokes whichever of the rules produces a result that
satisfies its sense of justice in the case before it.887

Statutes should be thought of in a continuum, which would make

functional considerations an integral part of the whole problem of their
application.

Such application requires that information should be provided

about the context of the provisions. Statutes are now inaugurate new
policies and social experiments. It is not possible to give these
sympathetic considerations without some appreciation of their
background. Some statutes may have no single or readily discoverable
policy; yet the rigid exclusion of all extrinsic material does seem to be
undesirable, however hard it might be to set limits to the kind of material
that should be admitted.

On the other hand, one should not overlook the problem

confronting judges, not the sobering experience of countries which have
admitted such material. A rule of inclusion might well be as hampering as
a rule of exclusion, and the matter may be better left, after all, to judicial
discretion.

It was said that different methods of interpretation should be

applied to different types of statutes. However, this does not appear to be
workable, for difficulties are bound to arise as to how a particular statute
is to be classified and how one should treat a statute of a hybrid character.
Classification will help very little, for the heart of the matter rests in the
attitude of the judges.888

                                                            
887
‘Willis’ Statute Interpretation in a Nutshell, (1938) 16 Canadian BR p. 16 as
referred to by Dias, Ibid, p. 171
888
Dias, Ibid, pp. 185-186

384 

 
 It assumes that number of possible interpretations the one that
appears most to our sense of right and justice for the time being is most
likely to give the meaning of the framer of the rule. In truth this is a
phenomenon we meet on every hand in the judicial process. The decisive
element is received ideals of the end of the law and of what legal precepts
should be in consequence; and it is this measuring by authoritative
received ideals which gives a reasonable stability and certainty to
interpretation.889

In order to determine the literary meaning of a statute the courts

make use of various rules of interpretation.

These, however, are rough principles or guides rather than strict

rules and are not so much the invention of the law as the application
within the context of law of ordinary common sense rules of language.890

For example to ascertain the ordinary meaning of a word in a

statute the court may look at dictionaries or scientific or other technical
works in which the words are used. It must also interpret statutory words
in the light of definitions provided by the statute itself, by the General
Clauses Act, and by any judicial decisions on the statute in question.891

But the meaning of a word is also affected by its context. Hence

the legal maxim noscitur a socis which means that “the meaning of a
word is to be judged by the company it keeps”, and is therefore merely
another rule of language.

The context may consist of the surrounding section or sections, the

whole Act, or indeed the whole are of legislation. Context may even give

                                                            
889
Roscoe Pound: Jurisprudence, Vol.III, p. 502
890
Salmond, Ibid, p. 133
891
Salmond, Ibid, p. 133

385 

 
the word a meaning which is not to be found in the dictionary. For
example several instances are to be found in the reports in which the
technical term “shall” as used in a statute has been considered as if it
were “may”. Since this was the meaning required to give effect to the
evident requirement of the legislature.892

This is a whole science of interpretation better known to judges and

Parliamentary draftsmen than to most members of the legislature itself.
Some of its rules cannot well be accounted for except on the theory that
Parliament generally changes the law for the worse, and that the business
of the judges is to keep the mischief of its interference within the
narrowest possible bounds.893

The major function of the judiciary lies in the interpretation of

statutes and the application of precedent. In this exercise, a judge is faced
with the ‘perennial problems: how to balance the need for stability and
certainty, embodied in the principle of stare decisis, with the need for the
constructive adaptation of the law to changing social needs; how to
balance the certainty aimed at, if not always achieved, by a strict
adherence to the letter of the law, with individual justice. The conflict can
never be finally resolved.

Changing climates of public opinion, fluctuations in the strength of

political and social pressures, differences of personality, and sheer
limitless variety of individual situations calling for a solution, constantly
pose the problem anew. Nor are they vitally different whether the
problem at hand is the interpretation of clause in a statute or an
application of precedent.

                                                            
892
Salmond, Ibid, p. 133
893
Sir Frederick Pollock: Essays in Jurisprudence and Ethics, (1882) 85 as referred
to by Salmond, Ibid, p. 138

386 

 
 A realistic consideration of the legislative process reveals the
immense complexities of statutory reform. In such a situation it behaves
the court to interpret a mental but comprehensive technical term in
accordance with the broader objective of the legislation.894

It is, however, possible to get nearer to the clarification if not the

solution of statutory problems of construction by differentiating between
statutes and statutes, by recognizing that a constitution poses problems
different from a statute reforming the law on a given subjects.

Yet no general theory could or should be a substitute for the

discriminating wisdom applied to the solution of a particular problem.
The acceptance of theoretical rules, literal or sociological, “golden” or
‘plain’, other than as technical aids can only lead to judicial self-
deception or to mental slavery.

It is the privilege and duty of judges and others exercising judicial

functions in modern democratic societies to decide a situation
unhampered either by the political dictation of a totalitarian government
or the construction of technical rules. Yet these rules cannot be entirely
discarded for without them we return to the chaos of “free” or “kingly”
justice. The search for proper rules of statutory interpretation is part of
the search for justice which is unending.895

The rules of construction are not rules in the ordinary sense of

having some binding force. They are our servants and not masters. They
are aids to construction, presumptions or pointers. Not infrequently one
rule points in one direction, another in a different direction. In each case
we must look at all relevant circumstances and decide as a matter of

                                                            
894
W. Friedmann, Ibid, p. 460
895
W. Friedmann, Ibid, p. 462

387 

 
judgment what weight to attach to any particular ‘rule’. A word should be
given its ordinary meaning unless there is sufficient reason to give it in
the particular case a secondary or limited meaning. The task of the judges
is to interpret the sections according to the intent of them that made it.896

Statute ought not to be treated like theorems of Euclid but rather

ought to be interpreted on the basis of a clear conception of their purpose.
Words and phrases should be construed in the context and within the
scheme underlying the text of the statute.897 Narrow pedantic approach
running counter to the constitutional mandate ought to be always
avoided.898

A principle of statutory interpretation is the presumption that an

updating construction is to be given to a statutory provision. In
interpreting an on going statute it is to be presumed that the legislature
intended the act to be applied at any future time in such a way as to give
effect to the original intention. In doing so allowance is made for the
relevant changes that have occurred in the society since the enactment of
the law.

It is also a rule of interpretation that a word with more than one

meaning must be interpreted to promote the object of the enactment.

In short, the interpretation process enables the court to give a

meaning to the existing law which approximates law to justice.

In probate law the rule is also favored because the testator is

typically not around to indicate what interpretation of a will is
appropriate. Therefore, it is argued, extrinsic evidence should not be

                                                            
896
Maunsell v. Olins & another, (1975) 1 All ER pp.16, 19
897
Tata Engg. & Locomotive Co. Ltd v. State of Bihar, (2000) 5 SCC 346
898
Githa Hariharan v. Reserve Bank of India, AIR 1999 SC 1149

388 

 
allowed to vary the words used by the testator or their meaning. It can
help to provide for consistency in interpretation.

It must, however, be recognized that the process of construction of

a statute by the various external aids to interpretation, such as the
application of any of the principles referred to above, are subject to
obvious limitations, in that while it is possible to discover the true and
intendment of a provision by the application of these principles, name of
these provisions could legitimately entitle a court to do violence to the
language of the statute or to give it a meaning that it does not have or to
read into the statute that which is not there, for, to do that, would be to
transgress the limits of interpretation and digress into the realm of
legislation which it is not open to a Court to do. What is outside the
statute does not become within it by the application of any of the
aforesaid principles merely because it is within the policy of it though
outside the mischief of its provisions, for, it is well established that the
policies incorporated in the statute or the object which prompted the
enactment of it are nevertheless distinct from the provision that ultimately
emerged from the legislative anvil and it is the end result with which the
Court is basically concerned. The policy of the statute may be an external
aid in the process of interpretation but where the provision falls short of
the policy, it is not open to the Court to extend the scope of it.

The historical evolution method- is a type of interpretation also

known as softening of texts. A judge using this method looks only at the
text., recognizing that researching the will of the legislature may be futile
in the light of societal changes that have occurred since the law was
enacted. This method considers social needs to be constantly evolving,
and permits a judge freely to adapt the text to the social needs of the time,

389 

 
based on research as to what the thought of the legislature would be
today.

French scholarly writers, whose tradition is to engage in the

systematization of legal concepts, have used different classifications to
describe various methods of statutory interpretation. Jean Carbonnier, for
instance, describes three main methods of statutory interpretation as the
exegetic method, the method of social purpose, and the free scientific
research method.899

As legislation covers an increasingly widening sphere of social

relationships, its character becomes more and more complex. Together
with a flood of statutes of all types there has been a wealth of judicial and
academic studies of the problem of their interpretation. The results,
however, become increasingly inconclusive.900

It is not, therefore, surprising that in the pronouncements of judges

and writers support can be found for almost any proposition ranging from
orthodox adherence to the literal rule, to complete judicial freedom in the
interpretation of statutes.

The Judge should take into consideration the following points

while dealing with the interpretation of a statute:

1. When a text is clear, it should be applied and not interpreted,

unless an absurd result would follow.
2. When a text is ambiguous or obscure, courts look for the will of the
legislature. For that, a judge first examines the text itself with care,
and considers commentaries written about the text. This is not
limited to the provisions to be applied but includes the chapter or
                                                            
899
Jean Carbonier, Droit Civil, 177, 12th Ed. 1979
900
W.Friedmann, Ibid, p. 457

390 

 
 the entire law. Often a provision is obscure only if separated from
its context.
3. If this study is insufficient, courts often go to discover the
legislature’s thinking.
4. When a text does not directly provide the solution for a dispute,
judges need at least to start from a text to situate the rule that they
will design.
5. If the legislative history is confusing, or the law is too old, the
judge may look at other considerations.
6. The statute should be interpreted in a manner to carry out the
intention of the legislature.
7. The intention is best declared by the words themselves.
8. Even modification or contradiction of the language of the
legislature is permissible in order to square with the intention.
9. Even words can be regarded as surplusage.
10. The intention of the legislature must be discovered from the words
of the statute.
11. If the words are ambiguous, the policy of the legislature, the scope
and object of the statute, and various rules and presumptions of
interpretation will show the intention.
12. For a judge to decide the meaning of a statute, they would use the
rules of language, these were developed by lawyers over time,
these rules are little more than common sense, however they are
not always precisely applied. The rules are Ejusdem generic rule,
Expressio unius est exclusion alterius rule and Noscitur sociis rule.
13. The Ejusdem Generis rule, means where the words follow a list of
specific words, the general words are constructed as being limited
to persons or things with the class outlined by the particular words.
So in reference to ‘dogs, cats and other animals’, the phrase ‘and

391 

 
 other animals’ would be limited in their application to a category of
domestic type animals and would not extend to wild animals.
14. A canon like noscitur sociis, tells a judge to interpret a word so that
it has ‘the same kind of meaning as its neighbours.”
15. The meaning of a doubtful word may be ascertained by a reference
to the meaning of words associated with it.901

Today, Judges employ a variety of the methods of interpretations.

They sometimes boldly interpret certain texts, to the point of giving them
a meaning opposite to the original provision. Sometimes judges interpret
a provision literally. They always attempt to maintain harmony between
the legislation they apply and changing times and needs. Judges are
accustomed to interpret the law and apply it to each separate instance.
They take into account reasonable, equitable, moral and social needs
more than methods.

CONCLUSIONS

The task of judicial interpretation is not merely to reiterate. The

present state of statutory interpretation suggests that something is amiss
with the judicial approach to the whole exercise.

The most important advantage of justice according to law is that it

insures that the more valuable ultimate interests, social and individual,
will not be sacrificed to immediate interests which are more obvious and
pressing but of less real weight.

English Law provides a number of guides to statutory

interpretation, or canons of construction. A difficulty arises with various
canons could return conflicting answers; since English Law has not yet

                                                            
901 th
 Vepa P. Sarathi- Interpretation of Statutes, EBC, 4 Ed. 2003, p-110 

392 

 
authoritatively established any complete hierarchy among the canons.902
The absence of a coherent set of rules of interpretation is best seen when
judges adopt opposing canons in the same case.903 It will have become
evident that the vagaries of statutory interpretation reflect differences in
the spirit of approach rather than in rules.904 In view of the present day
increase in legislative activity, judges are more and more concerned with
statutory interpretation.

It is not too much to say that this advantage of justice according to

law depends upon judges who are independent, trained to adhere to
principles and to be governed by legal reason rather than by interest or
external pressure, and watched narrowly by a learned profession, trained
in the same tradition which has at hand the materials for searching
criticism of every decision.905

There are four checks upon a judge: -

(1) A judge, from his very training, is impelled to confirm his

action to certain known principles or else to known standards.
Professional tradition and habit lead him in every case to seek
such principles or standards before acting and to refer his action
thereto.

(2) Every decision is subject to criticism by a trained profession, to

whose opinion the judge, as a member of the profession is
keenly sensitive.

(3) Every decision and the case on which it was based the claims of
the parties, very likely the evidence, and at any rate, findings of
                                                            
902
Chang v. Governor of Pentonville, (1973) 2 All ER pp. 205, 212
903
Dias: Jurisprudence, Ibid, p. 174
904
Dias, Ibid, p. 181
905
Roscoe Pound: Jurisprudence, Vol. II, 1959 Ed., pp. 447-448

393 

 
 the facts which must conform to the claims asserted and to the
evidence – appear in full in public records. In the case of
appellate courts, all important decisions and the grounds thereof
and reasons thereof are published in the law reports, so that
materials for accurate judgment upon judicial decisions are
always available and readily accessible.

(4) Where a case is decided by a single judge, the decision is

subject to review by a bench of judges, independent of the one
whose action is to be scrutinized and constrained by no –
hierarchical organization or esprit de corps to uphold whatever
he does. Moreover, a bench of judges sits to hear appeals and
the traditional ethics of adjudication require them each to act in
person.906

The statute governs all matters within the letter or the spirit of any
of its mandates. In default of an applicable statute, the judge is to
pronounce judgment according to the customary law, and in default of a
custom according to the rules which he would establish if he were to
assume the part of a legislator. He is to draw his inspiration, however,
from the solutions consecrated by the doctrine of learned and the
jurisprudence of the courts- par la doctrine et la jurisprudence.907 Statutes
are designed to control behavior and like every communication, involve
an author, a medium and an audience.908 Modern statues are drafted by

                                                            
906
Roscoe Pound: Jurisprudence, Ibid, pp. 456-457
907
Article 1 of the Swiss Civil Code of 1907, as cited by Benjamin N. Cardozo, Ibid,
pp. 140-141
908
Dickerson The Fundamental of Legal Drafting, p. 19 as referred to by Dias, Ibid,
p. 185

394 

 
professional legal draftsmen and intended to be real and understood by
professional lawyers.909

According to the plain meaning rule i.e. grammatical literal

meaning rule, the words of a statute, if they appear to be plain and
unambiguous, must be applied with a regard to the sense which their
authors intended to convey and without recourse to any exterior or
interior aids that might help elucidate their meaning. However it is
permissible for the court as to extension of statutory provisions to
situations which, although they do not fall within the broadest possible
meaning of the statutory language, do fall within the general principle or
social purpose envisaged by the statute.

Statutes were frequently extended to situations not expressly

covered by them. Conversely, if the application of a broadly phrased
statute to a particular complex of facts lead to a hardship or injustice, a
Judge is under no constraint to follow the words of a statute. The intent of
statutes is more to be regarded and pursued than the precise letter of
them, for oftentimes things which are within the words of statutes, are out
of the purview of them, which purview extends no further then the intent
of the makers of the Act, and the best way to interpret an Act of
Parliament is according to intent rather than according to the words. The
true meaning of the statute coincides with whatever the plain meaning of
the words conveys to the judicial mind, and the Judge should give full
force wherever possible to the literal meaning of the words employed. At
the same time, the function of the Judge is to gather the intent of the
legislature from the words used even if the consequences of such
interpretation may be mischievous.

                                                            
909
Prestcold (Central) Ltd. v. Minister of Labour, [1969] 1 All ER pp.69, 75 as
referred to by Dias, Ibid, p. 185

395 

 
 It is believed that law of statutory interpretation is in a state of flux.
Conflicting tendencies are at work in the courts which make it difficult to
formulate any general statements as to what should be considered
prevalent attitude towards statutes. Nevertheless, despite the large amount
of uncertainty and confusion presently existing in this branch of law,
certain trends and directions of development are noticeable which may
warrant a cautious prediction as to what the future of statutory
interpretation law in this country is likely to be.

In dealing with codified and statutory law, we know from universal

experience that the words of an enactment frequently reflect the
intentions and aims of its framers incompletely or inaccurately. When
legislatures endeavors to express their thoughts in concise yet general
terms situations are almost invariably omitted that were within the overall
intention of the measure; on the other hand, cases are frequently covered
by the statutory language for which the law makers, had they may be
aware of the problem, would have provided an exception.910 It is quite
clear that numerous members of a law making body, or even the members
of a legislative committee, frequently do not have a common
understanding with respect to the range or a purpose of a legislative Act,
and they may differ substantially on the scope of applicability of a
statutory clause or a provision. A reasonable law maker is aware of the
deficiencies inherent in the products of his legislative efforts. He knows
that statutory rule can almost never be phrased with such perfection that
all cases falling within the legislative policy are included in the textual
formulation while all situations not within the purview of the statute
remain outside of its linguistic ambit.

                                                            
910
Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Sixth
Indian Reprint 2009, Universal Law Publications, p. 420

396 

 
 It is evident from the various decisions that the adjudications
involving the plain meaning rule have not always follow a consistent line.
The golden rule and purpose oriented rule of statutory interpretation are
being frequently used by courts in India and abroad. It is preferable, as a
general rule, to let the judges find their own solution of an interpretative
problem by means of a reasonable construction of the statutory texts.
However, in cases where doubt arises as to the meaning and scope of
statutory language, the judge should, as a general rule, ascertain the
legislative purpose through the use of all aids and resources at their
disposal and give effect to the purpose of the legislation. This rule should
prevail even though the social conditions obtaining at the time of the
adoption of the statute may have changed somewhat since and the
mischief or evil at which it was directed may not be present to quit the
same degree at the time of the decision involving an interpretation of a
statute.

Earlier, there was a theory that judges did not legislate at all as it is
his duty to declare and interpret the law, but not to make it. Now the new
theory asserts that judges produce law just as much as legislatures do;
they even make it more decisively and authoritatively then legislatures,
since statutes are interpreted by the courts and such interpretation
determines the true meaning of the enactment more significantly then its
original text. The latter theory of law must be regarded as the most widely
accepted view of the judicial process, although disagreement may exist
with respect to the volume and scope of judicial law making through
interpretation. It is well known that a Judge, in making a decision, will in
most cases undertake to safe the existing materials at his command rather
than to manufacture something entirely novel. In discharging this
function, he will rely on technical legal sources, the general spirit of the

397 

 
legal system, certain basic premises or clearly discernable trends of the
social and economic order, received ideals of justice and certain moral
conception of the society.911

The judge as the interpreter for the community of its sense of law
and order must supply omissions, correct uncertainties, and harmonize
results with justice through a method of free decision. Courts are to
search for light among the social elements of every kind that are the
living force behind the facts they deal with. This power is great and
subject, like all power, to abuse.

Today, most judges are inclined to say that what was once thought
to be the exception is the rule, and what was the rule is the exception.
There has been a new generalization which, applied to new particulars,
yields results more in harmony with past particulars, and, what is still
more important, more consistent with the social welfare. This work of
modification is gradual. It goes on inch by inch. Its effects must be
measured by decades and even centuries. Thus, measured, they are seen
to have behind them the power and the pressure of the moving glacier.912

The Judge who moulds the law by the method of philosophy may
be satisfying an intellectual craving for symmetry of form and substance.
But he is doing something more. He is keeping the law true in its
response to a deep-seated and imperious sentiment. Only experts perhaps
may be able to gauge the quality of his work and appraise its
significance.913 In default of other tests, the method of philosophy must
remain the organon of the courts if chance and favour are to be excluded,

                                                            
911
 Edgar Bodenheimer, Jurisprudence: The Philosophy and Method of the Law, Ibid,
p. 442 
912
Benjamin N. Cardozo, Ibid, p. 25
913
Benjamin N. Cardozo, Ibid, p. 35

398 

 
and the affairs of men are to be governed with the serene and impartial
uniformity which is of the essence of the idea of law.914

History or custom or social utility or some compelling sentiment of

justice or sometimes perhaps a semi-initiative apprehension of the
pervading spirit of our law must come to the rescue of the anxious judge,
and tell him where to go.915 Sometimes the controlling factor of
interpretation may be the personality of the judge, his taste, his training or
his bent of mind.916 When the social needs demand one settlement rather
than another, there are times when we must bend symmetry, ignore
history and sacrifice custom in the pursuit of other and larger ends.917

Justice reacted upon logic, sentiment upon reason, by guiding the

choice to be made between one logic and another. Reason in its twin
reacted upon sentiment by purging it of what is arbitrary, by checking it
when it might otherwise have been extravagant, by relating it to method
and order and coherence and tradition.918 The misuse of logic or
philosophy begins when its method and its ends are treated as supreme
and final.

Courts have often been led into error in passing upon the validity
of a statute, not from misunderstanding of the law, but from
misunderstanding of the facts.

These different rules were formulated with reference to statutes of

different types and to legislative practice of different types also that they
were formulated by courts of different jurisdiction, acting with different
judicial aims. A rule formulated in comparatively ancient times in view of
                                                            
914
Benjamin N. Cardozo, Ibid, pp. 35-36
915
Benjamin N. Cardozo, Ibid, p. 43
916
Benjamin N. Cardozo, Ibid, p. 53
917
Benjamin N. Cardozo, Ibid, p. 65
918
Benjamin N. Cardozo, Ibid, p. 45

399 

 
the extreme conciseness of ancient statutes, cannot properly be applied to
the prolix enactments of modern legislatures; on the other hand, rules
applied in days when, ‘Acts were framed in harmony with the lax method
of interpretation, contemporaneously prevalent’, cannot properly be
applied today; and again it is not possible to countenance now the method
of interpretation ‘according to equity of the State’ which courts of
Chancery at one time adopted in order to extract out of words meaning
which no one else would find there. In deciding whether it is legitimate to
adopt the particular rule of interpretation, one must have regard to the
kind of statute with reference to which it was formulated, the Court which
formulated it and the legislative practice of time. There is otherwise a risk
of being misled by conflicting rules.919

The interpretation of a statute must by no means of necessity

remain the same forever. To speak of an exclusively correct
interpretation, one which would be the true meaning of the statute from
the beginning to the end of its days, is altogether erroneous. The courts
are to shape their judgments in accordance with reason and justice. That
does not mean that in judging the validity of statutes they are free to
substitute their own ideas of reason and justice for those of the men and
women whom they serve. Their standard must be an objective one. Not
the origin, but the goal, is the main thing.

There will always be conflicts of judicial decisions as well as the

inevitable divergences in applying any ideals and principles to a given
situation. Such tensions are of essence of law in a free society. It is
neither possible nor desirable that any theory of judicial interpretation
should attempt to resolve such tensions. What it can and must do for the
legal practitioner, or the bench, at the bar, to sort out the legal tools and
                                                            
919
Badshah Mia v. Rajabali, AIR 1946 Cal. 348

400 

 
instruments at their disposal. But there use in any given situation will
always depends on the skill and wisdom of the user. Just as the excellent
instrument supplied by modern technology are no substitute for the
surgeon’s skill and judgment, so legal theory of interpretation can only
prepare and sort out the instruments of legal decisions.920

Nothing is stable. Nothing is absolute. All is fluid and changeable.

There is an endless “becoming”.

There is an old legend that on one occasion God prayed, and his
prayer was “Be it my will that my justice be ruled by my mercy”.

That is a prayer which we all need to utter at times when the

demon of formalism tempts the intellect with the lure of scientific
order.921

                                                            
920
W. Friedmann, Legal Theory, Ibid, p.418
921
Benjamin N. Cardozo, Ibid, p. 66

401