Role of Judges in the Art of Interpretation of Statutes

 Benjamin Cardozo in The Growth of Law – it is the role of the judge to fill gaps in the
legislation in order to apply them in different situations – this leads to the creation of
new laws.
 Not just the written meaning of the text – even looking at the intention of the
legislation is not enough – modern jurists say that you now have to look at the current
meaning of the word that has developed independent of the creators’ motives.
 Krishan Iyer J. – “better the prophetic than archaeological, better deal with the future
than the past”
 Legislature could never foresee all situations – instead of the courts trying to
determine what the intent of the legislature was, their job is actually to determine
what it could have been for a situation they would not have yet fathomed.
o Thus, what comes out of the courtroom is not the intention of the legislature
but its own intention – judicial legislation (referred to by Gohen as
“legiputation” and by Richard Posner as ‘imaginative reconstruction’)
 Interpretation
o Technical meaning to be given
o Construct sentences according to the rules of grammar
o Convey the meaning in an ordinary and natural way
 Ascertain the meaning of the words without reference to the case in hand.
 The Nature of Judicial Process – Benjamin Cardozo – mentality of judges while
interpreting – 4 judicial methods for interpretation:
1. Method of logic/philosophy
Follow a line of logical progression – interpretation should be legally and
logically consistent.
2. Method of history/evolution
Based on historical origin of that rule and the corresponding intention.
3. Method of custom/tradition
Customs denote community values – used as backdrop in decision-making.
4. Method of sociology
Importance of social welfare and justice.
 Cardozo says that the courts view law as being authoritative, not normative.

Interpretation – derived from ’interpretari’ – explaining or translating

Blackstone – most logical method for interpreting is by looking at the signs:

 Subject matter
 Words
 Context
 Effect of the law
 Consequences
  Will of the legislator.
Shift from strict literal approach to purposive one.

Judicial Approaches
Literal Approach
 Plain rule of interpretation.
 Words are applied in consonance with their literal meaning as intended to be used by
the law maker.
 Context is ignored, only text is looked at – criticised by Lord Scarman.
 Traditional approach.
Purposive Approach
 When there is a gap in the explanation provided by the legislature, it is the judiciary
who is supposed to fill this gap
 Context of the writing – interpret keeping in mind the intention of the draftsman.
 Limitations:
o Only to be used when words of statute are unclear
o Used only to give meanings to words that have not been defined by the statute.

Golden rule – contains aspects of literal and purposive approach but leans more toward the literal
approach.
Mischief rule – determines intention of the legislator and interprets statute based on that intention.

Methods of Interpretation
1. Method of Logic – Riggs v. Palmer
 Not the most important method.
 Logic has a certain presumption in its favour
 Philosophy is simply using one’s logic
 Provides stability in decision-making
 Adhering to precedents as a rule.

2. Method of History – Winterbottom v. Wright being overruled by MacPherson v.

Buick Motor Co. (due to changed condition and circumstances)
 Origin of the statute
 Method of logic and method of history are often used together

3. Method of Custom – Subramaniam Chettiar v. Kumarappa Chettiar

 Custom and tradition are important not to create news laws but to test how
rules that are already established should be applied.
 If customs are to gain the status of positive human law, it should be through a
legislation.
 4. Method of Sociology – M.C. Mehta v. State of Tamil Nadu
 Broad scope – social welfare can mean multiple things – public policy and
morals, religion, ethics etc.
 Morality in consonance with social justice.
 Eg: constitutional law and private law.

Critical Analysis
 Process of interpretation constitutes of interpretation and application.
 Interpretation – use linguistic principles like ejusdem generis to find the meaning of
the word.