INTERPRETATION OF STATUTES

INTRODUCTION:
THEORETICAL DISAGREEMENTS ABOUT LAW

(Excerpts and Case Discussion from Ronald Dworkin’s ‘Law’s Empire’ – Elmer’s Case, Snail Darter’s Case
and McLoughlin)

Disagreement with regard to the law can be on three fronts – on issue of facts, on issues of law and on the
twinned issue of fidelity and morality. The third issue, of morality and fidelity, is very different but also
familiar. People often disagree about moral rights and wrong, and moral disagreement raises no special
problems when it breaks out in court. But lawyers and judges often seem to disagree about the law
governing a case; they disagree even about the right test to use. Further, lawyers and judges might agree
about grounds of law (about when the truth or falsity of other, more familiar propositions, makes a
particular proposition of law true or false) but disagree about whether these grounds are in fact specified in
a particular case.

For example: Lawyers and judges might agree that the speed limit is 55 km/hr in California if the official
California statute book contains a law to that effect, but disagree about whether that is the speed limit
because they disagree about whether, in fact, the book does contain such a law. This is called an empirical
disagreement where disagreement is about whether a law exists or not.

Another form of disagreement is when they disagree about the grounds of law, about which other kinds
of propositions, when true, make a particular proposition of law true. They might agree, in the empirical
way, about what the statute books and past judicial decisions have to say about compensation for fellow-
servant injuries, but disagree about what the law of compensation actually is because they disagree about
whether statute books and judicial decisions exhaust the pertinent grounds of law. We might call that a
theoretical disagreement about the law.

Empirical disagreement about law is hardly mysterious. People can disagree about what words are in the
statute books in the same way they disagree about any other matter of fact. But theoretical disagreement in
law, disagreement about law's grounds, is more problematic.

Lawyers and judges do disagree theoretically, very often. They disagree about what the law really is, on the
question of racial segregation or industrial accidents, for example, even when they agree about what statutes
have been enacted and what legal officials have said and thought in the past. What kind of disagreement is
this? How would we ourselves judge who has the better of the argument?

In a trivial sense, judges unquestionably "make new law" every time they decide an important case. They
announce a rule or principle or qualification or elaboration-that segregation is unconstitutional or that
workmen cannot recover for fellow-servant injuries, for example-that has never been officially declared
before. But they generally offer these "new" statements of law as improved reports of what the law, properly
understood, already is. They claim, in other words, that the new statement is required by a correct
perception of the true grounds of law even though this has not been recognized previously, or has even
been denied. So the public debate about whether judges "discover" or "invent" law is really about whether
and when that ambitious claim is true. If someone says the judges discovered the illegality of school
segregation, he believes segregation was in fact illegal before the decision that said it was, even though no
court had said so before. If he says they invented that piece of law, he means segregation was not illegal
before, that the judges changed the law in their decision. This debate would be clear enough-and could
easily be settled, at least case by case-if everyone agreed about what law is, if there were no theoretical
disagreement about the grounds of law. Then it would be easy to check whether the law before the Supreme
Court's decision was indeed what that decision said it was. But since lawyers and judges do disagree in the
theoretical way, the debate about whether judges make or find law is part of that disagreement, though it
contributes nothing to resolving it because the real issue never rises to the surface.

-- ~ --

Elmer’s case

Facts: Elmer murdered his grandfather – he poisoned him – in New York in 1882. He knew that his
grandfather's existing will left him the bulk of the estate, and he suspected that the old man, who had
recently remarried, would change the will and leave him nothing. Elmer's crime was discovered; he was
convicted and sentenced to a term of years in jail. The residuary legatees under the will, those entitled to
inherit if Elmer had died before his grandfather, were the grandfather's daughters. Their first names are not
reported, so we will call them Goneril and Regan. They sued the administrator of the will, demanding that
the property now go to them instead of Elmer. They argued that since Elmer had murdered the testator,
their father, the law entitled Elmer to nothing.

Issue: Was Elmer legally entitled to the inheritance his grandfather's (the testator’s) last will provided (i.e.
assuming that he had indeed killed his grandfather)?

The law pertaining to wills is for the most part set out in special statutes, often called statutes of wills, which
stipulate the form a will must take to be considered valid in law: how many and what kinds of witnesses
must sign, what the mental state of the testator must be, how a valid will, once executed, may be revoked
or changed by the testator, and so forth. The New York statute of wills, like most others in force at that
time, said nothing explicit about whether someone named in a will could inherit according to its terms if
he had murdered the testator. Elmer's lawyer argued that since the will violated none of the explicit
provisions of the statute it was valid, and since Elmer was named in a valid will he must inherit. He said
that if the court held for Goneril and Regan, it would be changing the will and substituting its own moral
convictions for the law.

The judges of the highest court of New York all agreed that their decision must be in accordance with the
law. None denied that if the statute of wills, properly interpreted, gave the inheritance to Elmer, they must
order the administrator to give it to him. None said that in that case the law must be reformed in the
interests of justice. They disagreed about the correct result in the case, but their disagreement – or so it
seems from reading the opinions they wrote – was about what the law actually was, about what the statute
required when properly read.

o The dissenting opinion, written by Judge Gray: Judge Gray argued for a theory of legislation more
popular then than it is now. This is sometimes called a theory of "literal" interpretation, though that is
not a particularly illuminating description. It proposes that the words of a statute be given what we
might better call their acontextual meaning, that is, the meaning we would assign them if we had no special
information about the context of their use or the intentions of their author. This method of
interpretation requires that no context-dependent and unexpressed qualifications be made to
general language, so Judge Gray insisted that the real statute, constructed in the proper way, contained
no exceptions for murderers. He voted for Elmer.

Law students reading his opinion now are mostly contemptuous of that way of constructing a statute
from a text; they say it is an example of mechanical jurisprudence. But there was nothing mechanical
about Judge Gray's argument. There is much to be said (some of which he did say) for his method of
constructing a statute, at least in the case of a statute of wills. Testators should know how their wills will
be treated when they are no longer alive to offer fresh instructions. Perhaps Elmer's grandfather would
have preferred his property to go to Goneril and Regan in the event that Elmer poisoned him. But
 perhaps not: he might have thought that Elmer, even with murder on his hands, was still a better object
for his generosity than his daughters. It might be wiser in the long run for judges to assure testators that
the statute of wills will be interpreted in the so-called literal way, so that testators can make any
arrangements they wish, confident that their dispositions, however amusing, will be respected. Besides,
if Elmer loses his inheritance just because he is a murderer, then that is a further punishment, beyond
his term in jail, for his crime. It is an important principle of justice that the punishment for a particular
crime must be set out in advance by the legislature and not increased by judges after the crime has been
committed. All this (and more) can be said on behalf of Judge Gray's theory about how to read a statute
of wills.

o Judge Earl, writing for the majority: Judge Earl used a very different theory of legislation, which
gives the legislators' intentions an important influence over the real statute. "It is a familiar
canon of construction," Earl wrote, "that a thing which is within the intention of the
makers of a statute is as much within the statute as if it were within the letter; and a
thing which is within the letter of the statute is not within the statute, unless it be within
the intention of the makers." (Notice how he relies on the distinction between the text, which
he calls the "letter" of the statute, and the real statute, which he calls the "statute" itself.) It
would be absurd, he thought, to suppose that the New York legislators who originally enacted
the statute of wills intended murderers to inherit, and for that reason the real statute they
enacted did not have that consequence.

We must take some care in stating what Judge Earl meant about the role intention should play
in constructing statutes. He did not mean that a statute can have no consequence the legislators
did not have in mind. This is plainly too strong as a general rule: no legislator can have in mind
all the consequences of any statute he votes for. The New York legislators could not have
contemplated that people might bequeath computers, but it would be absurd to conclude that
the statute does not cover such bequests. Nor did he mean only that a statute can contain
nothing that the legislators intended that it not contain. This seems more plausible, but it is too
weak to be of any use in Elmer's case. For it seems likely that the New York legislators did not
have the case of murderers in mind at all. They did not intend that murderers inherit, but neither
did they intend that they should not. They had no active intention either way. Earl meant to rely
on a principle we might call intermediate between these excessively strong and weak principles:
he meant that a statute does not have any consequence the legislators would have rejected if
they had contemplated it.

Judge Earl did not rely only on his principle about legislative intention; his theory of legislation
contained another relevant principle. He said that statutes should be constructed from texts
not in historical isolation, but against the background of what he called general principles
of law: he meant that judges should construct a statute so as to make it conform as closely as
possible to principles of justice assumed elsewhere in the law. He offered two reasons. First, it
is sensible to assume that legislators have a general and diffuse intention to respect traditional
principles of justice unless they clearly indicate the contrary. Second, since a statute forms part
of a larger intellectual system, the law as a whole, it should be constructed so as to make that larger
system coherent in principle. Earl argued that the law elsewhere respects the principle that no
one should profit from his own wrong, so the statute of wills should be read to deny inheritance
to someone who has murdered to obtain it.

Judge Earl's views prevailed. They attracted four other judges to his side, while Judge Gray was
able to find only one ally. So Elmer did not receive his inheritance.

-- ~ --
 Snail Darter’s case

This case was about what the law was, about what the real statute the legislators enacted really
said.

In 1973, during a period of great national concern about conservation, the United States Con- gress enacted
the Endangered Species Act. It empowers the secretary of the interior to designate species that would be
endangered, in his opinion, by the destruction of some habitat he considers crucial to its survival and then
requires all agencies and departments of the government to take "such action necessary to insure that
actions authorized, funded, or carried out by them do not jeopardize the continued existence of such
endangered species."

A group of conservationists based in Tennessee had been opposing dam construction projects of the
Tennessee Valley Authority, not because of any threat to species but because these projects were altering
the geography of the area by converting free-flowing streams into narrow, ugly ditches to produce an
unneeded increase (or so the conservationists believed) in hydroelectric power. The conservationists
discovered that one almost finished TVA dam, costing over one hundred million dollars, would be likely
to destroy the only habitat of the snail darter, a three-inch fish of no particular beauty or biological interest
or general ecological importance. They persuaded the secretary to designate the snail darter as endangered
and brought proceedings to stop the dam from being completed and used.

The authority argued that the statute should not be construed to prevent the completion or operation of
any project substantially completed when the secretary made his order. It said the phrase "actions
authorized, funded, or carried out" should be taken to refer to beginning a project, not completing projects
begun earlier. It supported its claim by pointing to various acts of Congress, all taken after the secretary
had declared that completing the dam would destroy the snail darter, which suggested that Congress wished
the dam to be completed notwithstanding that declaration. Congress had specifically authorized funds for
continuing the project after the secretary's designation, and various of its committees had specifically and
repeatedly declared that they disagreed with the secretary, accepted the authority's interpretation of the
statute, and wished the project to continue.

The Supreme Court nevertheless ordered that the dam be halted, in spite of the great waste of public funds.
(Congress 1hen enacted a further statute establishing a general procedure for exemption from the act, based
on findings by a re- view board.)

o Chief Justice Warren Burger wrote an opinion for the majority of the justices: He said, in words
that recall Judge Gray's opinion in Elmer's case, that when the text is clear, the Court has no right to
refuse to apply it just because it believes the results silly. Times change, however, and the chief justice's
opinion was in one respect very different from Judge Gray's. Burger recognized the relevance of
congressional intention to the decision what statute Congress had made. But he did not accept Earl's
principle about the way in which congressional intention is relevant. He refused to consider the
counterfactual test that Earl's analysis made decisive. "It is not for us," he said, "to speculate, much less
act, on whether Congress would have altered its stance had the specific events of this case been
anticipated."

Instead he adopted what we called, in discussing Earl's opinion, the excessively weak version of the idea that
judges constructing a statute must respect the legislature's intentions. That version comes to this: if the
acontextual meaning of the words in the text is clear – if the words "carry out" would normally include
continuing as well as beginning a project – then the Court must assign those words that meaning, unless
it can be shown that the legislature actually intended the opposite result. The legislative history leading
up to the enactment of the Endangered Species Act did not warrant that conclusion, he said, because
Congress plainly wanted to give endangered species a high order of protection even at great cost to
other social goals, and it is certainly possible, even if not probable, that legislators with that general aim
would want the snail darter saved even at the amazing expense of a wasted dam. He rejected the evidence
of the later committee reports and the actions of Congress in approving funding for the continuation
 of the dam, which might have been thought to indicate an actual intention not to sacrifice the dam to
this particular species. The committees that had reported in favor of the dam were not the same as the
committees that had sponsored the act in the first place, he said, and congressmen often vote on
appropriations without fully considering whether the proposed expenditures are legal under past
congressional decisions.

o Justice Lewis Powell wrote a dissent for himself and one other justice: Justice Powell said that the
majority's decision constructed an absurd real statute from the text of the Endangered Species Act. "It
is not our province," he said, "to rectify policy or political judgments by the Legislative Branch, however
egregiously they may disserve the public interest. But where the statutory and legislative history, as in
this case, need not be construed to reach such a result, I view it as the duty of this Court to adopt a
permissible construction that accords with some modicum of common sense and the public weal."

This states yet another theory of legislation, another theory of how the legislature's intentions affect the
statute behind the text, and it is very different from Burger's theory.

Burger said that the acontextual meaning of the text should be enforced, no matter how odd or absurd
the consequences, unless the court discovered strong evidence that Congress actually intended the
opposite. Powell said that the courts should accept an absurd result only if they find compelling
evidence that it was intended. Burger's theory is Gray's, though in a less rigid form that gives some
role to legislative intention. Powell's theory is like Earl's, though in this case it substitutes common sense
for the principles of justice found elsewhere in the law.

Once again, if we take the opinions of these two justices at face value, they did not disagree about any
historical matters of fact. They did not disagree about the state of mind of the various congressmen who
joined in enacting the Endangered Species Act. Both justices assumed that most congressmen had never
considered whether the act might be used to halt an expensive dam almost completed. Nor did they disagree
over the question of fidelity. Both accepted that the Court should follow the law. They disagreed about the
question of law; they disagreed about how judges should decide what law is made by a particular text enacted
by Congress when the congressmen had the kinds of beliefs and intentions both justices agreed they had
in this instance.

-- ~ --

McLoughlin

Elmer's case and the snail darter case both arose under a statute. The decision in each case
depended upon the best construction of a real statute from a particular legislative text. In many
lawsuits, however, the plaintiff appeals not to any statute but to earlier decisions by courts. He
argues that the judge in his case should follow the rules laid down in these earlier cases, which he
claims require a verdict for him. McLaughlin was of this sort.

Mrs. McLoughlin's husband and four children were injured in an automobile accident in England
at about 4 P.M. on October 19, 1973. She heard about the accident at home from a neighbor at
about 6 P.M. and went immediately to the hospital, where she learned that her daughter was dead
and saw the serious condition of her husband and other children. She suffered nervous shock and
later sued the defendant driver, whose negligence had caused the accident, as well as other parties
who were in different ways involved, for compensation for her emotional injuries. Her lawyer
pointed to several earlier decisions of English courts awarding compensation to people who had
suffered emotional injury on seeing serious injury to a close relative. But in all these cases the
plaintiff had either been at the scene of the accident or had arrived within minutes. In a 1972 case,
for example, a wife recovered – won compensation – for emotional injury; she had come upon
the body of her husband immediately after his fatal accident. In 1967 a man who was not related
to any of the victims of a train crash worked for hours trying to rescue victims and suffered nervous
shock from the experience. He was allowed to recover. Mrs. McLaughlin's lawyer relied on these
cases as precedents, decisions which had made it part of the law that people in her position are
entitled to compensation.

British and American lawyers speak of the doctrine of precedent; they mean the doctrine that
decisions of earlier cases sufficiently like a new case should be repeated in the new case. They
distinguish, however, between what we might call a strict and a relaxed doctrine of precedent. The
strict doctrine obliges judges to follow the earlier decisions of certain other courts (generally courts
above them but sometimes at the same level in the hierarchy of courts in their jurisdiction), even
if they believe those decisions to have been wrong. The exact form of the strict doctrine varies
from place to place; it is different in the United States and Britain, and it differs from state to state
within the United States. According to most lawyers' view of the strict doctrine in Britain, the
Court of Appeal, which is just below the House of Lords in authority, has no choice but to follow
its own past decisions, but American lawyers deny that the comparable courts in their hierarchy
are constrained in this way. Lawyers within a particular jurisdiction sometimes disagree about the
details, at least, of the strict doctrine as it applies to them: most American lawyers think that the
lower federal courts are absolutely bound to follow past decisions of the Supreme Court, but that
view is challenged by some.

The relaxed doctrine of precedent, on the other hand, demands only that a judge give some
weight to past decisions on the same issue, that he must follow these unless he thinks them
sufficiently wrong to outweigh the initial presumption in their favor. This relaxed doctrine may
embrace the past decisions not only of courts above him or at the same level in his jurisdiction but
of courts in other states or countries. Obviously, much depends on how strong the initial
presumption is taken to be. Once again, opinion varies among lawyers from jurisdiction to
jurisdiction, but it is also likely to vary within a jurisdiction to a greater extent than opinion about
the dimensions of the strict doctrine. Any judge is likely to give more weight to past decisions of
higher than of lower courts in his own jurisdiction, however, and to past decisions of all these
courts than to courts of other jurisdictions. He may well give more weight to recent decisions of
any court than to earlier ones, more weight to decisions written by powerful or famous judges than
to those written by mediocre judges, and so forth. Two decades ago the House of Lords declared
that the strict doctrine of precedent does not require it to follow its own past decisions – before
that declaration British lawyers had assumed that the strict doctrine did require this – but the
House nevertheless gives great weight to its own past decisions, more than it gives to past decisions
of courts lower in the British hierarchy, and much more than it gives to decisions of American
courts.

Differences of opinion about the character of the strict doctrine and the force of the relaxed
doctrine explain why some lawsuits are controversial. Different judges in the same case disagree
about whether they are obliged to follow some past decision on exactly the question of law they
now face. That was not, however, the nerve of controversy in McLaughlin. Whatever view lawyers
take of the character and force of precedent, the doctrine applies only to past decisions sufficiently
like the present case to be, as lawyers say, "in point." Sometimes one side argues that certain past
decisions are very much in point, but the other side replies that these decisions are
"distinguishable," meaning they are different from the present case in some way that exempts them
from the doctrine. The judge before whom Mrs. McLoughlin first brought her suit, the trial judge,
decided that the precedents her lawyer cited, about others who had recovered compensation for
emotional injury suffered when they saw accident victims, were distinguishable because in all those
cases the shock had occurred at the scene of the accident, while she was shocked some two hours
later and in a different place. Of course not every difference in the facts of two cases makes the
earlier one distinguishable: no one could think it mattered if Mrs. McLoughlin was younger than
the plaintiffs in the earlier cases.

The trial judge thought that suffering injury away from the scene was an important difference
because it meant that Mrs. McLoughlin's injury was not "foreseeable" in the way that the injury
to the other plaintiffs had been. Judges in both Britain and America follow the common law
principle that people who act carelessly are liable only for reasonably foreseeable injuries to others,
injuries a reasonable person would anticipate if he reflected on the matter. The trial judge was
bound by the doctrine of precedent to recognize that emotional injury to close relatives at the
scene of an accident is reasonably foreseeable, but he said that injury to a mother who saw the
results of the accident later is not. So he thought he could distinguish the putative precedents in
that way and decided against Mrs. McLoughlin's claim.

She appealed his decision to the next highest court in the British hierarchy, the Court of Appeal.
That court affirmed the trial judge's decision – it refused her appeal and let his decision stand –
but not on the argument he had used. The Court of Appeal said it was reasonably foreseeable that
a mother would rush to the hospital to see her injured family and that she would suffer emotional
shock from seeing them in the condition Mrs. McLoughlin found. That court distinguished the
precedents not on that ground but for the very different reason that what it called "policy"
justified a distinction. The precedents had established liability for emotional injury in certain
restricted circumstances, but the Court of Appeal said that recognizing a larger area of liability,
embracing injuries to relatives not at the scene, would have a variety of adverse consequences for
the community as a whole. It would encourage many more lawsuits for emotional injuries, and this
would exacerbate the problem of congestion in the courts. It would open new opportunities for
fraudulent claims by people who had not really suffered serious emotional damage but could find
doctors to testify that they had. It would increase the cost of liability insurance, making it more
expensive to drive and perhaps preventing some poor people from driving at all. The claims of
those who had suffered genuine emotional injury away from the scene would be harder to prove,
and the uncertainties of litigation might complicate their condition and delay their recovery.

Mrs. McLoughlin appealed the decision once more, to the House of Lords, which reversed the
Court of Appeal and ordered a new trial. The decision was unanimous, but their lordships
disagreed about what they called the true state of the law. Several of them said that policy reasons,
of the sort described by the Court of Appeal, might in some circumstances be sufficient to
distinguish a line of precedents and so justify a judge's refusal to extend the principle of those cases
to a larger area of liability. But they did not think these policy reasons were of sufficient plausibility
or merit in Mrs. McLoughlin's case. They did not believe that the risk of a "flood" of litigation was
sufficiently grave, and they said the courts should be able to distinguish genuine from fraudulent
claims even among those whose putative injury was suffered several hours after the accident. They
did not undertake to say when good policy arguments might be available to limit recovery for
emotional injury; they left it an open question, for example, whether Mrs. McLoughlin's sister in
Australia (if she had one) could recover for the shock she might have in reading about the accident
weeks or months later in a letter.

Two of their lordships took a very different view of the law. They said it would be wrong for
courts to deny recovery to an otherwise meritorious plaintiff for the kinds of reasons the Court of
Appeal had mentioned and which the other law lords had said might be sufficient in some
circumstances. The precedents should be regarded as distinguishable, they said, only if the moral
principles assumed in the earlier cases for some reason did not apply to the plaintiff in the same
way. And once it is conceded that the damage to a mother in the hospital hours after an accident
is reasonably foreseeable to a careless driver, then no difference in moral principle can be found
between the two cases. Congestion in the courts or a rise in the price of automobile liability
insurance, they said, however inconvenient these might be to the community as a whole, cannot
justify refusing to enforce individual rights and duties that have been recognized and enforced
before. They said these were the wrong sorts of arguments to make to judges as arguments of law,
however cogent they might be if addressed to legislators as arguments for a change in the law.
(Lord Scarman's opinion was particularly clear and strong on this point.)

The argument among their lordships revealed an important difference of opinion about
the proper role of considerations of policy in deciding what result parties to a lawsuit are
entitled to have.

-- ~ --

Brown’s Case

After the American Civil War the victorious North amended the Constitution to end slavery and
many of its incidents and consequences. One of these amendments, the Fourteenth, declared that
no state might deny any person the "equal protection of the laws." After Reconstruction the
southern states, once more in control of their own politics, segregated many public facilities by
race. Blacks had to ride in the back of the bus and were allowed to attend only segregated schools
with other blacks. In the famous case of Plessy v. Ferguson the defendant argued, ultimately before
the Supreme Court, that these practices of segregation automatically violated the equal protection
clause. The Court rejected their claim; it said that the demands of that clause were satisfied if the
states provided separate but equal facilities and that the fact of segregation alone did not make
facilities automatically unequal.

In 1954 a group of black schoolchildren in Topeka, Kansas, raised the question again. A great deal
had happened to the United States in the meantime – a great many blacks had died for that country
in a recent war, for example – and segregation seemed more deeply wrong to more people than it
had when Plessy was decided. Nevertheless, the states that practiced segregation resisted integration
fiercely, particularly in the schools. Their lawyers argued that since Plessy was a decision by the
Supreme Court, that precedent had to be respected. This time the Court decided for the black
plaintiffs. Its decision was unexpectedly unanimous, though the unanimity was purchased by an
opinion, written by Chief Justice Earl Warren, that was in many ways a compromise. He did not
reject the "separate but equal" formula outright; instead he relied on controversial sociological
evidence to show that racially segregated schools could not be equal, for that reason alone. Nor
did he say flatly that the Court was now overruling Plessy. He said only that if the present decision
was inconsistent with Plessy, then that earlier decision was being overruled. The most important
compromise, for practical purposes, was in the design of the remedy the opinion awarded the
plaintiffs. It did not order the schools of the southern states to be desegregated immediately, but
only, in a phrase that became an emblem of hypocrisy and delay, "with all deliberate speed."

The decision was very controversial, the process of integration that followed was slow, and
significant progress required many more legal, political, and even physical battles. Critics said that
segregation, however deplorable as a matter of political morality, is not unconstitutional. They
pointed out that the phrase "equal protection" does not in itself decide whether segregation is
forbidden or not, that the particular congressmen and state officials who drafted, enacted, and
ratified the Fourteenth Amendment were well aware of segregated education and apparently
thought their amendment left it perfectly legal, and that the Court's decision in Plessy was an
important precedent of almost ancient lineage and ought not lightly be overturned. These were
arguments about the proper grounds of constitutional law, not arguments of morality or repair:
many who made them agreed that segregation was immoral and that the Constitution would be a
better document if it had forbidden it. Nor were the arguments of those who agreed with the
Court arguments of morality or repair. If the Constitution did not as a matter of law prohibit
official racial segregation, then the decision in Brown was an illicit constitutional amendment, and
few who supported the decision thought they were supporting that.

This case, like our other sample cases, was fought over the question of law. Or so it seems
from the opinion, and so it seemed to those who fought it.

-- ~ --
HANS-GEORG GADAMER: HERMENEUTICS
By Tanzil Chowdhury

Hermeneutics concerns itself with the philosophy of interpretation, initially oriented toward the
interpretation of texts. Indeed, though its origins lay in Greek antiquity, ‘advances in the
formulation of methods of interpretation had to await the Reformation and the attack on the
Church’s authority to interpret the bible.’ Thus, hermeneutics was a branch of theology that dealt
specifically with the interpretation of holy scriptures but has since expanded beyond textual
interpretation to encompass the interpretation of verbal (speech) and non-verbal (conduct)
expressions.

The use of Gadamerian hermeneutics in legal interpretation is well documented. Indeed, Gadamer
regarded law as having ‘exemplary significance’ in developing his Post-Romantic interpretation
that moved beyond methodological variations of attempting to determine authorial (specifically here,
legislative) intent (literal, mischief or golden rule). Importantly, as the intellectual progeny of
Heidegger, Gadamer’s hermeneutics moved in a way similar to that of his mentor. Like
Heidegger’s concept of phronesis for example, that emphasises our practical being-in-the-world and
identified our concrete situation as the mode of knowledge, Gadamer similarly employed this
‘thrownness’ (geworfenheit), by refuting the possibility of an interpretive style that was able to
transcend our necessary situatedness. Additionally, his dialogic approach, explained later as
the Fusion of Horizons, is eminently Heideggerean. Gadamer thus resisted attempting to articulate a
timeless method of hermeneutics and was more intrigued by identifying the conditions of the
interpretive style.

Gadamer stated that ‘understanding is, essentially, a historically effected event’. He therefore
rejected objective, neutral or value-free readings of legal texts, instead explaining what
the conditions were for intersubjective meaning or Verständigung. These can be understood in three
ways; that interpretation is ‘ontological, dialectical and critical’.

That interpretation is ontological derives from Gadamer’s assertion that the truth is largely
independent of any method and that we are in fact interpretive beings. Here, he adopted
Heidegger’s historicity of our ‘being-in-the-world as the fore-structure of Dasein’:

We are thrown into a world whose contexts moulds us and limits our imagination and, hence, our options.
Our very being is a process of interpreting our past, which is projected onto us and to which we respond…not
in what way being can be understood but in what way understanding is being…interpretation is the common
ground of interaction between text and interpreter, by which each establishes its being…interpreter and text
are indissolubly linked as a matter of being.

To put it crudely, interpretation is not something one ‘does’, but rather something one ‘is’. Hence
to think of variable methods of interpretation, like the Romantics did, missed the point. Unlike
the tabula rasa of the Cartesian spectator or Kant’s transcendental concepts for example, what
shaped one’s understanding of a text is one’s horizon which is ‘the range of vision that includes
everything that can be seen from a particular vantage point’. This relates to what Gadamer calls
the history of effect. As our existence is inherently contextual, we project onto meaning the traditions
of the world in which we are ‘thrown into’. Thus one possesses an ‘effective historical
consciousness’ by stint of awareness of this situatedness. Understanding is thus contingent on a
temporality in which ‘time is the productive possibility of custom and tradition aiding
understanding by illuminating what presents itself’. A ‘Gadamerian judge’ therefore would be
defined and shaped by an immanent effective history which it is necessarily immersed in and
thus constituted by.

That interpretation is dialectical refers to the to-ing and fro-ing between the horizons of the
interpreter and the (legal) text. Meaning does not protrude from the text automatically (like
authorial intent claims) but requires participation. Probing and further penetration of the text
challenges the interpreter’s own horizon. Indeed, ‘the confrontation with the text and openness is
willingness to expose, challenge and criticise prejudices highlighted by the text. This openness is
achieved dialectically with a willingness to listen and also to admit error’. Further, ‘an important
part of this testing occurs in encountering the past and in understanding the tradition from which
we come’. The dialectical process with the text will eventually result in a Fusion of Horizons in which
the interpreters’ prejudgments, generated by their effective history, are exposed and challenged—
as is the text’s, stimulating introspection into the effective history of the interpreter and the
presumptions of the text. Through conversation, a synthesis of sorts is accomplished. In its
standard application to statutory interpretation therefore, hermeneutics is a dialogic process. Rather
than trying to uncover some mystical, psychological intent of the author of a legal text, the judge
‘instead challenges and questions its assumptions to get at its truth-value. Similarly, the interpreter
places her own pre-judgments at risk, by opening them to questions and challenges from the text’.

That interpretation is critical; ‘the interpreter questions the text, the presuppositions of which may
be attenuated or undermined over time. In turn, the interpreter uses the experience to re-evaluate
her own pre-understandings, to separate the enabling, truth-seeking ones from the disabling, false
ones’. Thus the meaning of legal texts are not static but dynamic. Hermeneutics confronts the
embedded prejudices of the legal text by colliding them with the similar prejudices of the judicial
interpreter. Gadamerian hermeneutics therefore, is able to provide a sounder account of so-called
‘departures from established precedent’. For example, the case of Brown v. Board of Education of
Topeka in which the US Supreme Court declared racially segregated schools as unconstitutional,
overturned the state-sponsored segregation of the earlier case of Plessy v. Ferguson where both cases
relied upon divergent interpretive readings of the 14 thAmendment’s Equal Protection Clause.
Indeed, in confronting the prejudices of the legal text head on (both the amendment and the case
law), Justice Warren was documented as having convened a meeting of the Justices and saying that
maintaining the precedent of Plessy was to sustain the belief in the inferiority of African-Americans.
Problematically for Romantic Hermeneutics therefore, which was based on a misplaced claim of
transcendental meaning, such endeavours undermined the critical scope of hermeneutics. Indeed,
the author is only the first reader of the text. Arguably, the decision in Brown for the Romantics
could not be considered as anything other than ‘judicial activism’.

Before Gadamer, hermeneutics (attempting to emulate the natural sciences) sought to determine
the truth of texts with reference to a meaning that was the same at all places and at all times.
However, Gadamer recognised that our necessary situatedness meant, not just that such a
transcendental meaning was beyond us, but it did not ask the correct question—what were the
conditions of interpretation? Specifically for law, with the popularisation of the sentiment that
adjudication is interpretive (rather than fictitiously a declarative enterprise) Gadamer’s utility in
statutory interpretation has varied among scholars, some saying that it exemplified hermeneutical
understanding, some being more reticent, others stating it presented an honest account of
statutory interpretation that avoids the limitations of other theories, while some suggested that
we’d yet to unlock its potential. Most importantly however, to not recognise our initial throwness in
which our traditions shape our understanding (our ‘effective historical consciousness) is to
demonstrate what Gadamer referred to as Enlightenment thinking’s ‘prejudice toward prejudice’.
PRACTICAL REASONING

(Excerpts from William Eskridge Jr. & Philip Frickey, “Statutory Interpretation as Practical Reasoning” in
Yale Law School Faculty Scholarship Series, January, 1990)
Context – • The article speaks about textualism and the chain novel theory – It criticizes the
absolutist theory of interpretation which insists on applying the text absolutely – Absolutist
theories are of three types: a) Intentional – (emphasizing on the intent of the legislature at the time
of drafting a statute/law, b) Purposive – emphasizing on the purpose underlying a statute/law,
and c) Textual – emphasizing on the plain text of the statute – The difference between these three
absolutist theories are as follows: the intentional theory seeks ought the intention with which the
drafters of a law were drafting and enacting it (i.e. What were they thinking? What did they intend
to achieve?); the purposive approach is slightly more contextual as it considers what a statute or
law is supposed to do; the textual approach has two types (strict textualism and loose textualism) –
absolutist theories are generally not a preferable as one does not end up looking at the context of
each case, which is bound to be different. • United Steelworks v. Weber (1979) – The question
was with respect to affirmative action; the constitution of the USA does not expressly provide for
it; provisions for affirmative are mostly found in the Civil Rights Act, of which Section 703(a)(i)
states that it is unlawful to discriminate on the basis of race, religion, sex, etc. they used the formal
equality theory – Does this allow for positive discrimination? – Section 703(j) – nothing in this
section shall be interpreted as to require any employer to give special treatment to anyone on
account of de-facto racial imbalance in the employer’s workforce. – The Civil Rights Act does not
define what discrimination is. – United Steelworks had a training programme, which admitted
people in the ratio of 1:1 based on race. For each white, a black had to be admitted. Weber applied
for this work, but didn’t get admission. – Issue: Is this policy violative of the non-discrimination
clause? – Ruling: The Court ruled that this is not discrimination because: a) White people are being
hired along with black people; b) there is an end goal for this policy; and c) either such policies
should be time-bound or there must an end goal. – According to Eskridge, the judgment falls
more under the funnel of abstraction. – In the USA, there are no quotas allowed for black people.
Instead they have quotas for schools instead of races. This is a smart policy because of the history
of segregation. • Griffin v. Oceanic Constructors – Facts: The appellant was injured during his
employment and was subsequently discharged. A few weeks later he was again employed. The
respondents from his previous employment withheld $412. “Every master or owner who refuses
or neglects to make payment in the manner prescribed by law without sufficient cause shall pay to
the employee a sum equal to 2 days pay for each and everyday during which the payment was
delayed. This is beyond the actual pay of the employee.” – This case goes to the court based on
this law. – Issue: The question is whether the days are counted till he is hired again or till the
payment is made? – The difference in this case was $6881 v. $302790 – The court found that the
text of the statute is clear, mentioning that the employer’s liability subsists till the payment required
to be made as per law is in fact made. • Bob Jones University v. USA – Facts: The university is
a non-profit private university. – It prescribes a racially discriminatory admission policy where only
white people are admitted. – Section 501(c)(iii) of the Internal Revenue Code provided an
exemption on tax for religious, charitable or educational institutions. – Issue: Whether Bob Jones
qualifies for this exemption? – Ruling: SCOTUS unanimously decided that there should be no
exemption upheld for the university, because such exemptions were for those institutions that are
contributing towards welfare of the society. They looked at the specific and general legislative
history although it goes directly against statutory text. •

-- ~ --
The analysis in Part I not only shows that the leading foundationalist theories are flawed, but it
also suggests an alternative to these views of statutory interpretation. In what follows, we build a
positive descriptive theory of statutory interpretation from an analysis of the Court’s actual practice
in statutory interpretation cases, such as Weber, Griffin, and Bob Jones, and from our interpretation
of the pragmatic and hermeneutical traditions in philosophy. This positive theory only seeks to
make sense out of the Court's practice in statutory interpretation, in ways that foundationalism
cannot. We reserve for Part III our normative evaluation of the Court's practice.

Weber, Griffin, and Bob Jones illustrate our theoretical critique and suggest that the Supreme Court
does not follow any one of the foundationalist theories. Consider Bob Jones in this light. The
exemption for “charitable” institutions is a broad legislative message whose specific
implementation has been left to the Internal Revenue Service (IRS). In the early twentieth century,
when Plessy was still good law, it might have been appropriate to include segregated academies
among the institutions that receive the exemption. But in the Brown era, our society's commitment
to racial and ethnic integration put pressure on the IRS to rethink the application of the exemption
to institutions that perpetuated segregation. The IRS for several years left in place an interpretation
that allowed the exemption for such institutions. But the background tradition and the political
context was changing dramatically in that period, and those changes eventually impelled the IRS
to change its position in 1970 and 1971. When the Supreme Court sustained that decision in Bob
Jones, it too was making a practical judgment that the national policy against racial discrimination
outweighs the reliance interests built around the earlier interpretation, and that the political system
had acquiesced in the new IRS position. There are good arguments against this interpretation of
the statute in Bob Jones, and many of them are set forth in Justice Rehnquist’s dissenting opinion.
But, as Justice Powell suggested in his concurring opinion, the Court's political judgment was a
defensible one, even if not the inevitable one.

One's view of the correctness of the Court's decision is strongly influenced by one's views about
the breadth of Brown, the deference courts should show to the agency, and other political pre-
understandings. However when one votes in a case like Bob Jones, one is making a political choice,
or, more accurately, a cluster of choices. In many cases of statutory interpretation, of course, the
threads will not all run in the same direction. The cable metaphor suggests that in these cases the
result will depend upon the strongest overall combination of threads. That, in turn, depends on
which values the decisionmakers find most important, and on the strength of the arguments
invoking each value. For most of the Supreme Court Justices, a persuasive textual argument is a
stronger thread than an otherwise equally persuasive current policy or fairness argument,
because of the reliance and legislative supremacy values implicated in following the clear statutory
text. And a clear and convincing textual argument obviously counts more than one beclouded
with doubts and ambiguities. To interpret the statute in Griffin, for example, the interpreter will
look at the text and the legislative history and the purpose and current values. But to evaluate the
text, the interpreter will consider it in light of the whole enterprise, including the history, purpose,
and current values. In other words, none of the interpretive threads can be viewed in isolation,
and each will be evaluated in its relation to the other threads.
It is funnel-shaped for three reasons. First, the model suggests the hierarchy of sources that the
Court has in fact assumed. For example, in formulating her pre-understanding of the statute and
in testing it, the interpreter will value more highly a good argument based on the statutory text
than a conflicting and equally strong argument based upon the statutory purpose. Second, the
model suggests the degree of abstraction at each source. The sources at the bottom of the
diagram involve more focused, concrete inquiries, typically with a more limited range of
arguments. As the interpreter moves up the diagram, a broader range of arguments is available,
partly because the inquiry is less concrete. Third, the model illustrates the pragmatistic and
hermeneutical insights explained above: In formulating and testing her understanding of the
statute, the interpreter will move up and down the diagram, evaluating and comparing the different
considerations represented by each source of argumentation.

Textual Considerations

Our practical reasoning model starts with the prevailing Supreme Court assumption that the
statutory text is the most authoritative interpretive criterion. The text is most often the starting
point for interpretation, and textual arguments carry the greatest argumentative weight. The
Court's normative preference for text is a recognition of several values. Formally, all that is enacted
into law is the statutory text, and at the very least legislative supremacy means that an interpreter must be attentive
to the text. Functionally, citizens and lawmakers will rely on the apparent meaning of statutory texts.
Textual primacy can also be a useful concrete limit on judicial power.

Historical Considerations

Original legislative expectations are important in a democracy where the legislature is the primary
source of law-making. Evidence of the statute's background, together with the text, at least
suggests the original meaning of the statute. To the extent that the Court can recover that original
meaning, it subserves democratic values by enforcing the law as the legislature understood it, thus
limiting judicial discretion and power. Moreover, citizens and policymakers often rely on these
original expectations, especially when they reflect careful compromises. Historical considerations
are more abstract and less authoritative than textual evidence. The expectations and intentions of a large
collection of people, acting some time ago, are difficult to discover, and reliance on these expectations is neither as
reasonable nor as likely as reliance upon a statute's text. The most authoritative historical evidence is the
legislative history of the statute, because it is a contemporary record made by the enacting
legislators.

Legislative Purpose

The next interpretive focus is legislative purpose, the legal process inquiry. The counterfactual
assumptions underlying this approach that statutes are conclusively presumed to be purposive acts,
that legislators are reasonable people pursuing the public interest in reasonable fashion make this
approach too abstract to be a controlling theory of statutory interpretation. Several original
purposes are apparent, and they push the interpreter in different directions. In these instances, the
inquiry goes beyond the original purposes and asks, as the Court did in Weber, what purpose the
interpreter should "attribute" to the statute. This attribution of purpose will inevitably be
influenced by the interpreter's current context and the evolution of the statute over time.

Evolutive Considerations

These are highly abstract inquiries having less connection to text and legislative expectations, and
hence less authority in a democracy. Yet these inquiries are pertinent, because the enactment of
statutes is part of a dynamic process. The enactment of a statute is often the beginning of a
significant process of implementation by courts or agencies. Implementation changes the statute,
because the statute must be applied – and often subtly redirected – to meet variations of the
problem not originally anticipated.

Current Values

Finally, statutory interpretation will consider current values, such as ideas of fairness, related
statutory policies, and (most important) constitutional values. In Bob Jones, where the plain meaning
of the statutory text undercut the Court's interpretation and the historical evidence was ambiguous,
the fact that constitutional values supported denying the tax exemption was crucial to the decision.
All but the most ardent textualist will probably admit that even clear statutes should not be
interpreted to reach "absurd results"; clear inconsistency with current values, we argue, is akin to
absurdity. Consideration of these values has in fact exercised an important gravitational pull in
statutory cases.
RULE SCEPTICISM
(Excerpts from HLA Hart, The Concept of Law, pp 124- 141 & Frederick Schauer, A Critical Guide to
Vehicles in the Park, 83 NEW YORK UNIVERSITY LAW REVIEW 1109 (2008))

According to rule-scepticism, talk of rules is a myth, cloaking the truth that law consists simply of
the decisions of courts and predictions of them.

Even if we suppose the denial that there are rules and the assertion that what are called rules are
merely predictions of the decisions of courts to be limited in this way, there is one sense, in which
it is obviously false. For it cannot be doubted that at any rate in relation to some spheres of conduct
in a modern state individuals do exhibit the whole range of conduct and attitudes which we have
called the internal point of view. Laws function in their lives not merely as habits or basis of
predicting the decisions of courts or the actions of other officials, but as accepted legal standards
of behaviour. That is, they not only do with tolerable regularity what the law requires of them, but
they look upon it as a legal standard of conduct, refer to it in criticizing others, or in justifying
demands, and in admitting criticism and demands made by others. …

Rule-scepticism has a serious claim on our attention, but only as a theory of the function of rules
in judicial decision. In this form, while conceding all the objections to which we have drawn
attention, it amounts to the contention that, so far as the courts are concerned, there is nothing to
circumscribe the area of open texture: so that it is false, if not senseless, to regard judges as
themselves subject to rules or 'bound' to decide cases as they do. They may act with sufficient
predictable regularity and uniformity to enable others, over long periods, to live by courts'
decisions as rules. Judges may even experience feelings of compulsion when they decide as they
do, and these feelings may be predictable too; but beyond this there is nothing which can be
characterized as a rule which they observe. There is nothing which courts treat as standards of
correct judicial behaviour, and so nothing in that behaviour which manifests the internal point of
view characteristic of the acceptance of rules….

To argue in this way is to ignore what rules actually are in any sphere of real life. It suggests that
we are faced with the dilemma: ‘Either rules are what they would be in the formalist's
heaven and they bind as fetters bind; or there are no rules, only predictable decisions or patterns
of behaviour.’ Yet surely this is a false dilemma. We promise to visit a friend the next day. When
the day comes it turns out that keeping the promise would involve neglecting someone dangerously
ill. The fact that this is accepted as an adequate reason for not keeping the promise surely does not
mean that there is no rule requiring promises to be kept, only a certain regularity in keeping them.
It does not follow from the fact that such rules have exceptions incapable of exhaustive statement,
that in every situation we are left to our discretion and are never bound to keep a promise. A rule
that ends with the word 'unless . . . ' is still a rule….

This is not to say that pretence or 'window dressing' is not possible and sometimes successful.
Tests for whether a person has merely pretended ex post facto that he acted on a rule are, like all
empirical tests, inherently fallible but they are not inveterately so. It is possible that, in a given
society, judges might always first reach their decisions intuitively or ‘by hunches ' , and then merely
choose from a catalogue of legal rules one which, they pretended, resembled the case in hand; they
might then claim that this was the rule which they regarded as requiring their decision, although
nothing else in their actions or words suggested that they regarded it as a rule binding on them.
Some judicial decisions may be like this, but it is surely evident that for the most part decisions,
like the chess-player's moves, are reached either by genuine effort to conform to rules consciously
taken as guiding standards of decision or, if intuitively reached, are justified by rules which the
judge was antecedently disposed to observe and whose relevance to the case in hand would
generally be acknowledged…
 PRIMARY RULES OF INTERPRETATION
• Literal Rule:

A statute often contains a "definitions" section, which explicitly defines the most important terms
used in that statute. However, some statutes omit a definitions section entirely, or fail to define a
particular term. The literal rule, which is also known as the plain meaning rule, attempts to guide
courts faced with litigation that turns on the meaning of a term not defined by the statute, or on
that of a word found within a definition itself.

According to this rule, when a word does not contain any definition in a statute, it must be given
its plain, ordinary, and literal meaning. If the word is clear, it must be applied, even though the
intention of the legislature may have been different or the result is harsh or undesirable. The literal
rule is what the law says instead of what the law means. This is the oldest of the rules of
construction and is still used today, primarily because judges are not supposed to legislate. As there
is always the danger that a particular interpretation may be the equivalent of making law, some
judges prefer to adhere to the law's literal wording. When the words of a Statute are clear, plain or
unambiguous, i.e. they are reasonably susceptible to only one meaning, the courts are bound to
give effect to that meaning irrespective of consequences.

• Golden Rule:

This rule of statutory interpretation allows a shift from the ordinary sense of a word(s) if the overall
content of the document demands it. This rule is a modification of the literal rule. It states that if
the literal rule produces an absurdity, then the court should look for another meaning of the words
to avoid that absurd result. The grammatical and ordinary sense of the words is to be adhered to
unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense of the words may be modified so as
to avoid the absurdity and inconsistency, but no farther.

It is a very useful rule in the construction of a statute as it allows to adhere to the ordinary meaning
of the words used, and to the grammatical construction, unless that is at variance with the intention
of the legislature to be collected from the statute itself, or leads to any manifest absurdity or
repugnance, in which case it allows the language to be varied or modified so as to avoid such
inconvenience.

This rule may be used in two ways. It is applied most frequently in a narrow sense where there is
some ambiguity or absurdity in the words themselves. For example, imagine there may be a sign
saying, "Do not use lifts in case of fire." Under the literal interpretation of this sign, people must
never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention
of the person who made the sign is obviously to prevent people from using the lifts only if there
is currently a fire nearby. This was illustrated in the case of Lee v. Knapp 1967 QB where the
interpretation of the word "stop" was involved. Under Road Traffic Act, 1960, a person causing
an accident "shall stop" after the accident. In this case, the driver stopped after causing the accident
and then drove off. It was held that the literal interpretation of the word stop is absurd and that
the requirement under the act was not fulfilled because the driver did not stop for a reasonable
time so that interested parties can make inquiries from him about the accident.
 The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to
principles of public policy, even where words have only one meaning. Bedford v. Bedford, 1935,
is another interesting case that highlighted the use of this rule. It concerned a case where a son
murdered his mother and committed suicide. The courts were required to rule on who then
inherited the estate, the mother's family, or the son's descendants. The mother had not made a will
and under the Administration of Justice Act 1925 her next of kin, i.e. her son, would inherit her
estate. There was no ambiguity in the words of the Act, but the court was not prepared to let the
son who had murdered his mother benefit from his crime. It was held that the literal rule should
not apply and that the golden rule should be used to prevent the repugnant situation of the son
inheriting. The court held that if the son inherits the estate that would amount to profiting from a
crime and that would be repugnant to the act.

Thus, the Golden rule implies that if a strict interpretation of a statute would lead to an absurd
result then the meaning of the words should be so construed so as to lead to the avoidance of such
absurdity. A further corollary to this rule is that in case there are multiple constructions to effect
the Golden rule the one, which favours the assessee, should always be taken. This rule is also
known as the Rule of Reasonable Construction.

Advantages:

a. This rule prevents absurd results in some cases containing situations that are completely
unimagined by the lawmakers.

b. It focuses on imparting justice instead of blindly enforcing the law.

Disadvantages:

a. The golden rule provides no clear means to test the existence or extent of an absurdity. It
seems to depend on the result of each individual case. Whilst the golden rule has the
advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to
determine what is an absurdity.

b. This rule tends to let the judiciary overpower the legislature by applying its own standards
of what is absurd and what it not.

• Mischief Rule:

Judges in statutory interpretation use the Mischief Rule in order to discover legislature's intention.

It essentially asks the question: by creating an Act of Parliament, what was the "mischief" that the
previous or existing law did not cover and this act covers. Lord Coke in Sir John Heydon’s Case,
1584, developed this rule, where it was stated that there were four points to be taken into
consideration when interpreting a statute:

1. What was the common law before the making of the act?

2. What was the "mischief or defect" for which the common law did not provide?
 3. What remedy the parliament hath resolved and appointed to cure the disease of the
commonwealth?

4. What is the true reason of the remedy?

The application of this rule gives the judge more discretion than the literal and the golden
rule as it allows him to effectively decide on Parliament's intent. Legislative intent is
determined by examining secondary sources, such as committee reports, treatises, law
review articles and corresponding statutes.

The rule was further illustrated in the case of Smith v. Hughes, 1960, where under the Street
Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for the purposes
of prostitution". The defendants were calling to men in the street from balconies and tapping on
windows. They claimed they were not guilty as they were not in the "street." The judge applied the
mischief rule to come to the conclusion that they were guilty as the intention of the Act was to
cover the mischief of harassment from prostitutes.

This rule is of narrower application than the golden rule or the plain meaning rule, in that
it can only be used to interpret a statute and only when the statute was passed to remedy
a defect in the common law. This rule has often been used to resolve ambiguities in cases in
which the literal rule cannot be applied. As seen In Smith v. Hughes, the mischief approach gave
a more sensible outcome than that of the literal approach.

Advantages:

a. The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed
to the Golden or Literal rules.

b. It usually avoids unjust or absurd results in sentencing.

Disadvantages:

a. It is seen to be out of date as it has been in use since the 16th century, when common law
was the primary source of law and parliamentary supremacy was not established.

b. It gives too much power to the unelected judiciary, which is argued to be undemocratic.

c. In the 16th century, the judiciary would often draft acts on behalf of the king and were
therefore well qualified in what mischief the act was meant to remedy, however, such is
not the case anymore.
SUBSIDIARY RULES OF INTERPRETATION

I. The Statute must be read as a whole:

• Whenever the question arises as to the meaning of a certain provision in a statute it is

proper and legitimate to read that provision in context of the entire statute. This means
that the statute must be read as a whole.

• What was the previous state of law? The study of other statutes in pari materia i.e., on the
same matter, if there are any; what is the general scope of statute and mischief which it
wanted to remedy? – all these questions are to be considered here.

• Every clause of a statute should be construed with reference to the context and other
clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole
statute or series relating to the subject-matter.

• The intention of Legislature needs to be found by reading the statute as a whole.

• The conclusion that the language used by the legislature is plain or ambiguous can only be
truly arrived by studying the statute as a whole.

• Words take colour from the context in which they are used. The same word may mean
one thing in one context and another in different context, therefore, the same word used
in different sections of a statute may bear different meaning. This is why it is necessary to
read the statute as a whole in its context.

II. The Rule of harmonious construction:

Generalia Specialibus non-derogant

Where there is a special provision specifically dealing with a subject, a general provision,
howsoever widely worded must yield to the former. This principle is expressed by the
maxim Generalia Specialibus non-derogant.

• It is the duty of courts to avoid head-on-clash between two sections of the Act and to
construe provisions which appear to be in conflict with each other in such a manner as to
harmonize them.

• The provision of one section of a statute cannot be used to defeat the other provisions
unless the court finds it impossible to effect reconciliation between them.

• It has to be borne in mind by all the courts all the time that when there are two conflicting
provisions in an Act, which cannot be reconciled with each other, they should be so
interpreted that, if possible, effect should be given to both. This is the essence of rule of
harmonious construction.
 • The courts also have to keep in mind that an interpretation which reduces one of the
provisions to a ‘dead letter’ or ‘useless lumber’ is not harmonious construction.

• Provisions should be construed with reference to each other to ensure their consistency
with the object sought to be achieved.

• To harmonise is not to destroy any statutory provision and render it otiose.

III. A statute must be construed to make it effective and workable / Presumption of

constitutional validity / Ut res magis valeat quam pereat

This rule furthers to establish that the Court shall presume the constitutionality of a
provision and prefer an interpretation in favour of the competence of the legislature or
other authority laying down a rule of law. Linguistically, this Latin maxim suggests: That
the thing may rather have effect than be destroyed. Therefore, whenever alternative constructions
are possible the court must give effect to that which will be responsible for the smooth
working of the system for which the statute has been enacted and not to that which put
obstacles or hindrances in its way.

Avtar Singh v. State of Punjab, AIR 1955 SC 1107 166 - Appellant was convicted of
theft of electricity under Section 39 of Electricity Act, 1990. He contented that the
proceedings were illegal because they were not initiated by any of the persons as mandated
by Section 50 of the act. It was held that under this principle, the requirement of Section
50 should be given effect.

Corporation of Calcutta v. Liberty Cinema, AIR 1965 SC 661 170 – Under a. 413 of
the Calcutta Municipal Act, 1951, no person shall, without a license granted by the
Corporation of Calcutta, keep open any cinema house for public amusement in Calcutta.
Under s. 548(2), for every license under the Act, a fee may be charged at such rate as may
from time to time be fixed by the Corporation. In 1948, the appellant (Corporation) fixed
fees on the basis of annual valuation of the cinema house. The respondent, who was the
owner and licensee of a cinema theater, had been paying a license fee of Rs. 400 per year
on that basis. In 1958, the appellant, by a Resolution, changed the basis of assessment of
the fee.

Under the new method the fee was to be assessed at rates prescribed per show according
to the sanctioned seating capacity of the cinema house; and the respondent had to pay a
fee of Rs. 6,000 per year. The respondent, therefore moved the High Court for the issue
of a writ quashing the resolution and the application was allowed.

In the appeal to the Supreme Court the appellant contended that (i) the levy was a tax and
not a fee in return for services and (ii) Section 548(2) does not suffer from the vice of
excessive delegation; While the respondent contended that (i) the levy was a fee in return
for services to be rendered and not a tax, and as it was not commensurate with the costs
incurred by the Corporation in providing the services, the levy was invalid; (ii) if s. 548
authorized the levy of a tax, as distinct from a fee in return for service rendered, it was
invalid, as it amounted to an illegal delegation of legislative functions to the appellant to
fix the amount of a tax without any guidance for the purpose and (iii) the levy was invalid
as violating Article 19(1) (f) and (g) of the Constitution.
 Held:

(i) The charge was not a fee but a tax.

(ii) The word "fee" in s. 548 must be read as referring to a tax as any other reading
would make the section invalid, and in interpreting a statute; it ought to be made
valid if possible.

(iii) While interpreting any provision/law if there are two interpretations possible: one
which is intra vires while another which is ultra vires, then former interpretations
shall always prevail over the latter.

IV. Expressio unius est exclusio alterius

This maxim is given to gauge the intent of the legislature. If the words of the Statute are
plain and its meaning is clear then there is no scope for applying the rule.

This rule applies when a provision is clearly set out which is in contrast with another
provision, which is not clearly set out in the statute. Were both the provisions clearly set
out in the statute then harmonious construction had to be applied. To elaborate further
on this, look into Harish Chandra Bajpai v. Triloki Singh. In this case, the question
before the Supreme Court was whether the Tribunal could allow an amendment to the
original petition whereby a new charge could be introduced. S. 83(3) provided for
amending the petition to include the particulars while a general provision was laid out in
Order VI Rule 17 of the Code of Civil Procedure.

Both the provisions, express and implied, should operate on the same subject matter. If
the subject matter of both the provisions is different this rule has no application.

Limitation of this rule is: If the alternative provision is clearly set out then this rule is not
applied. As stated above, this rule is employed to gauge the intention of the Parliament
which if, is clear from the words used should be applied.

Part IV of the Motor Vehicles Act provided for obtaining ‘permit’ by the government to
enter into a commercial practice with the other private players. Later Part IVA was inserted
into the Motor Vehicles Act whereby through a ‘scheme’ only government could obtain
the permit to ply vehicles, which could be claimed as a matter of right. To this, petitioners
used the said doctrine and contested – Since the provision for scheme is clearly set out in
Part IVA, it by virtue of Expressio Unius Est Exclusio Alterius excludes the ‘permit’ under
Part IV of the Act. Negating this contention Court observed:

It is a maxim for ascertaining the intention of the legislature. Where the statutory
language is plain and the meaning clear, there is no scope for applying the rule.
Section 42(3) (a) of the Motor Vehicles Act, is plain in its terms. It contemplates
that the Government has to apply for permits under Section 42(1) to run buses as
a commercial enterprise. That being so, the maxim cannot be resorted to for
ascertaining the intention of the legislature and implying a prohibition against the
Government applying for permits under Chapter IV.
 When two provision or statutes are to be interpreted wherein, one provision or
statute clearly sets out unequivocally what it aspires to achieve while the other is
silent, in such a situation if the question arises, ‘what if by import, statute/provision
which is silent on a specified subject matter is to be tacitly read or interpreted with
the one which has been clearly specified’, what rule of interpretation should be
resorted to? This is the perfect situation in which the rule of Expressio Unius Est
Exclusio Alterius is applied.

V. Noscitur a sociis

Noscere means to know and sociis means association. Thus, Noscitur a Sociis means knowing
from association. Thus, under the doctrine of "noscitur a sociis" the questionable meaning
of a word or doubtful words can be derived from its association with other words within
the context of the phrase. This means that words in a list within a statute have meanings
that are related to each other. If multiple words having similar meaning are put together,
they are to be understood in their collective meaning. According to Maxwell, "this rule
means that when two or more words susceptible to analogous meaning are clubbed
together, they are understood to be used in their cognate sense. They take as it were their
colour from each other, i.e. the more general is restricted to a sense analogous to a less
general".

This doctrine is broader than the doctrine of Ejusdem Generis because this rule puts the
words in context of the whole phrase and not just in relation to the nearby words.

The language of the phrase can be used as a guide to arrive at the true meaning of the
word.

When this doctrine is not used: While ascertaining the meaning of a clause or sentence
by contrasting it to a prior clause or sentence in the same provision or different provision
in the same statute or different statute, this rule is not resorted to.

When this doctrine is used: This rule is used to interpret the word/words with reference
to words found in immediate connection with them i.e. when two or more words, which
are susceptible of analogous meaning, are clubbed together, they are understood to be used
in their cognate sense. They take, as it were, their colours from each other the meaning of
the more general is restricted to a sense analogous to the less general.

It is a well settled rule of construction that where the legislature uses the same expression
in the same statute at two places or more, then the same interpretation should be given to
that expression unless the context requires otherwise.

VI. Ejusdem generis

The Ejusdem Generis, or ‘of the same genus’ rule, is similar though narrower than the
more general rule of noscitur a sociis. It operates where a broad or open-ended term
appears following a series of more restrictive terms in the text of a statute. Where the terms
listed are similar enough to constitute a class or genus, the courts will presume, in
interpreting the general words that follow, that they are intended to apply only to things
of the same genus as the particular items listed. According to this rule, when particular
words pertaining to a class or a genus are followed by general words, the general words are
construed as limited to the things of the same kind as those specified by the class or the
genus. The meaning of an expression with wider meaning is limited to the meaning of the
preceding specific expressions. However, for this rule to apply, the preceding words must
for a specific class or genus. Further, this rule cannot be applied in the words with a wider
meaning appear before the words with specific or narrow meaning.

In UP State Electricity Board vs Harishankar, AIR 1979, SC held that the following conditions
must exist for the application of this rule –

• The statue contains an enumeration of specific words

• The subject of the enumeration constitutes a class or a category

• The class or category is not exhausted by the enumeration

• A general term is present at the end of the enumeration

• There is no indication of a different legislative intent

If the words were intended to be given its natural meaning then no restrictive interpretation
should be given by resorting to the principle of Ejusdem generis.

For the application of this principle, there must be a distinct genus or category running
through the words. If that is not there, this rule cannot be applied

This principle is applied when the specific words are preceded by the general words and
not the other way round i.e. general words precede the specific words

More than one species should exist in the genus for the applicability of this principle.
PRESUMPTIONS
I. Words in a statute are used precisely and not loosely. This is an extension of
the literal rule of interpretation.

Mayor (Plymouth) v. Taranakey Electricity Board: Facts: A Municipal

Corporation Act allowed an electric supplier of a particular borough to enter into
a contract with the local authority of any neighbouring district to supply electricity
to such local authority.

Issue: Whether the board is allowed to contract with neighbouring

districts?

Holding: “Neighbouring” means adjoining. “Adjoining” means sharing

boundaries. The words is to be read precisely and cannot be interpreted
loosely to mean neighbouring boroughs. Thus, the board is not allowed to
enter into the said contracts with boroughs that are not adjoining it.

II. Mensrea

Generally required for a criminal act.

A statute may define a state of mind as an element of an offence, either by express

words or by implication or by being silent.

Unless mensrea is ruled out by necessary implications, a court should guard the liberty
of a subject and not find a man guilty unless he is proved to have a guilty mind.

Hari Prasad Rao v. State: After World War II, petrol was rationed. The supplier
was required to ensure that petrol was only provided against specific coupons at
the time of exchange. No advance payments would be accepted. No person shall
furnish or acquire petrol otherwise than in accordance with the provisions of their
order.

Clause 5: motor spirit required for any vehicle not covered by clause 3 or
4 shall be furnished or acquired only against the surrender to a supplier at
the time of supply of valid ordinary coupons only in accordance with any
condition or instructions appearing on or attached to coupons.

Rule 81(4) states if any person contravenes any order made under his rule,
he shall be punishable with imprisonment for a term, which may extend to
3 years or with a fine or both.

Clause 27(a): When motor spirit is furnished against the surrender of one
or more coupons the supplier shall immediately endorse or cause to be
endorsed on each coupon to surrender the registration mark of the vehicle
to which the motor spirit is furnished.

Rao was a supplier and his agent did not follow these rules in Rao’s
absence. He was charged with violation under clause 21 and 27 for
supplying and for not endorsing.
 For clause 22 – mensrea required, general provision (no person…) and,
therefore, only the agent is liable.

For clause 27 – it requires that supplier endorse coupons specific to the

obligation of the supplier, failure to do so it will be the supplier’s
responsibility and he will be held liable.

Sarju Prasad v. State of UP : This case is regarding the adulteration of food and
its sale.

Section 7, Prevention of Adulteration of Food Act: No person shall

himself or by any person on his behalf sell any adulterated food.

Section 1: Any person himself or by any person on his behalf sells any
article of food in contravention of any provisions of this Act, he shall be
punishable. Sarju was an agent of Thakur Gill and he was caught selling
adulterated oil.

Issue: Whether Sarju is liable for having sold the oil?

Claim – agents are generally not aware of adulteration in the goods that
they sell.

Held: We know Thakur is definitely liable. Generally you are expected to

know what you are selling. However it can be proved otherwise. If it can
be shown, then your liability decreases. Thakur was held liable. Sarju’s
punishment was mitigated owing to circumstances.

Ranjit Uddeshi v. State of Maharashtra : Ranjit was one of the partners of book
firm that owned a bookshop. Th shop was found to be in possession of sale of
copies of a book called ‘Lady Chatalet’s Lover’, the unexpurgated version which
inter alia contained obscene matter. Ranjit was prosecuted u/s 292 of IPC. Is he
liable?

Claim: he was not aware that it was an obscene book.

Does mensrea extend to requiring knowing the content of the book before
putting it into circulation?

Held: Specific mensrea is not required because then every bookseller would
be required to know the contents of every single book and would be
needed to be proved also.

III. Whether the Government is affected by a statute?

In English law, the crown (i.e. the sovereign) is generally considered not to be
implicated in any statute unless expressly provided.
 UOI v. Jubi & Duniya: Land Reforms Act was enacted post-independence and,
hence, at a time when no ‘crown’ was present in India.

Issue: Whether the legislation generally applies to the Union or whether

such has to be expressly stated to be made applicable to the Government?

Issue: Whether a tenant on the land owned by UOI can claim transfer of
land to his name under the Act?

Owner is not an individual but the UOI.

Held: Court ruled yes. The “UOI” necessarily implies the government is
affected and it is presumed to be included unless expressly excluded.

IV. Prospective Application of Law

Laws are generally made to be prospective unless expressly made retrospective.

Pyarelal Sharma v. MD: Facts: Pyarelal was an employee at J&K India Ltd, a
state owned company that qualifies as a state. Fundamental rights can be enforced
against it if there is a violation. The company had certain rules related to letting go
of an employee – state legislation

2 grounds were post abolished or medical grounds that required 3 months’

notice.

2 additional grounds were added in April with respect to leave on

unauthorized grounds and take part in active politics.

Leave ended in March and Pyarelal went back to work. On April 31st his
services were terminated. His unauthorized leave ended in March and he
has joined work.

Held: He is not liable and no retrospective application will be allowed since

it is not expressly provided by the Act.

V. Statutes are not intended to be contradicting international law

Courts must adopt that interpretation that will not be in conflict with rights and
obligations flowing with international law.

In the event of inconsistency, municipal law will prevail. The court, as far as possible,
must choose that interpretation that resonates with international law.

ADM Jabalpur – Justice Khanna’s dissent – Article 21 can’t be suspended during

emergency. He cited the Universal Declaration of Human Rights (UDHR).

Under Art 359 of the Constitution, the President can suspend fundamental
rights at the time of emergency. Now the question is whether Articles 20
and 21 be suspended as well?
 J. Khanna applies the rule of consistency – citing the international rule of
UDHR – and says that state can’t suspend Articles 20 and 21. But this was
a dissenting judgment and later on we had the 44 th Constitutional
Amendment where it was said that Articles 20 and 21 couldn’t be
suspended during emergencies.
Monist v. Dualist

Monist – International law once signed becomes national law/municipal law. Example –
China and Japan.

Dualist – For international law to become enforceable, it has to be separately enacted in

national laws. Thus, it is not subservient to international law. Example – India and USA.

VI. Legislature doesn’t make mistakes or commit omissions

If the precise words of the statute are plain and unambiguous, courts are bound to
construe them in an ordinary sense, even if it leads to absurdity or manifest injustice.

Words can only be modified if their meaning is obscure.

The duty of the court is to construe law as it stands and not to make laws.

No court is competent to proceed on the presumption that the legislature made a

mistake because there is a strong presumption that the legislators don’t make mistakes.

Clerical or printing errors may be corrected as can an accidental omission in the

schedule.

Nalinakhya Baisakh v. Shyam Sundar: Issue: Whether a statute that provides

certainty in relation to a “decree” extends to “orders” passed by the Court?

Held: The court rules that when the rule says decree, it does not include
order. Marginal notes have no authority when the text of the statute is clear.
Therefore, no vacation of order.

VII. Presumption relating to jurisdiction

There are 3 possible scenarios:

(i) A liability exists in common law and a statute provides for a specific
remedy. Both statutory and common-law remedies co-exist unless
statutory law excludes the common law remedies.

(ii) The right to sue is provided for in statutes without a specific remedy. In
such a case only the common law remedy will be available.

(iii) The statutes create a liability not existing in common law. In such a case,
remedy exists only under the statutory law.
 The common law court is the High Court whereas a statutory court is the court of
summons.

Barraclough v. Brown: The Harbors Docks and Piers clauses Act, 1847
provided for remedies to undertakers in relation to works done in order to
recover ships sunk in rivers. This gave undertakers the right to get
costs/damages from the owners for the recovery.

The appellant was an undertaker and brought a suit against the

respondents for recovery of costs for damages during recovery of
wreckage.

Queen’s bench - It is a statutory right, where the right and the

remedy go together, and therefore jurisdiction will vest in the court
of summary juris.

Tyx Granite Co. v. Ministry of Housing: The Town and Country Planning Act, 1947
restricted the owner’s rights to deal with their own land for development and provided
that permission is required from the local authority in order to engage in any development.
An exception was granted to any development authorized by any local or private act of the
Parliament, which may be undertaken without permission.

Tyx was authorized to develop, i.e. quarrying certain lands in certain areas of North
Malvern, under the private act of Parliament (Malvern Hills Act). They bring a case against
the local authority that they don’t need permission as they are authorized.

Case in High Court, MoH claims no jurisdiction of the court…..

VIII. Legislature knows existing laws

Legislature doesn’t intend to alter an existing statute except by express enactment.

(Abdul Rahim v. Syed Barkat)
INTERNAL AIDS TO CONSTRUCTION

I. Long Title

Long Title gives a general description of the object of the Act and it often precedes
the preamble of the Act.

Although the title is a part of the Act, it is in itself not an enacting provision and though
useful in cases where the ambiguity in an the enacting provision needs to be resolved,
it is ineffective in controlling the common meaning of a statutory provisions.

II. Preamble

Like the long title of a statute, the preamble of a statute is also a part of the Act and is
an admissible aid to construction. It is not an enacting part, but, it is expected to
express the scope, object and purpose of the Act more comprehensively than the long
title.

The role of the preamble in interpretation cannot be curtailed or restricted. Preamble

can be an aid in construing a provision when the provision is ambiguous. It can afford
useful assistance to ascertain legislative intention, but, cannot control otherwise the
plain meaning of a provision.

The preamble of the constitution, for example, is to be read as a whole but the
preamble alone cannot be seen as a source of any prohibition or limitation. Preamble
is not a source of law.

The Act including the preamble must be read as a whole to decide whether any part of
the enacting provisions is clear or ambiguous.

Retrospectively inserted preamble into an earlier Act is not much of an assistance for
gathering intention of original act.

III. Headings

Headings constitute an important part of the Act itself.

In comparison to the preamble of a statute, they provide a better key to the

construction of sections which follow them.

Headings are of two kinds, those prefixed to a section and those prefixed to a group
or set of sections. Headings of a section indicates factors to be considered in reading
the provisions.

The heading prefixed to a section or set of sections in some modern statutes are
regarded as the preamble to those sections. They cannot control the plain words of the
statute but they may explain ambiguous words.
IV. Marginal Notes

Notes which are inserted at the sides of the sections in an Act and express the effect
of sections are called marginal notes.

They are not part of provision and cannot be considered as a legitimate aid to the
construction of a provision.

In the interpretation of a statute, marginal notes may not be used because most of
these notes are inserted by draftsman and not by the legislators and not even under
instructions of legislators.

In some exceptional cases, marginal notes may be inserted by the legislators

themselves. In such cases, help may be taken of marginal notes because here they are
considered as part of the Act. (Marginal notes appended to Articles of the
Constitution)

Language of the marginal note prima facie furnishes clues as to the meaning and
purpose of the section. It cannot be used to control the operation of section, but in
case of ambiguity or doubt it can be referred to as an aid in interpreting the section.

V. Punctuations

Before 1850s, punctuations weren’t used in enactments.

They generally cannot alter the plain meaning of a statute, as it should be first read
without punctuations. If the meaning is clear and unambiguous without the
punctuations, then the punctuations must be disregarded.

If there is an ambiguity, punctuations may be used to resolve that ambiguity.

VI. Illustrations

Sometimes, in order to explain a provision of law contained in a statute, illustrations

are appended to section of statute.

The illustrations appended to a section form part of the section and although they do
not form part of the statute, they are of relevance and value in the construction of the
text of the section and they should not readily be rejected as repugnant to the section.

They help to elucidate the principles of law contained in a provision.

But it is said that illustrations cannot modify the language of the section and they
cannot curtail or expand the ambit of the section which alone forms the enactment.

Illustrations cannot have the effect of controlling the real content of the section and
must give way in case of repugnance to the text of the section.

VII. Schedules
 Schedules attached to an Act generally deal with how claims or rights under the Act
are to be asserted or how powers conferred under the act are to be exercised.

They form part of the statute to which they are appended.

They are added towards the end and their use is made to avoid encumbering the
sections in the statute with matters of excessive detail.

They often contain details and prescribed forms for working out the policy underlying
the sections of the statute.

VIII. Definition Clauses

A word or expression once defined in the statute has to be given same meaning unless
context otherwise requires.

The principle is that all statutory definitions have to be read subject to the qualifications
variously expressed in the definition clauses which created them and it may be that
even where the definition is exhaustive inasmuch as the word defined is said to mean
a certain thing, it is possible for the word to have a somewhat different meaning in
different sections of the Act depending upon subject or context.

There may be sections in the act where the meaning may have to be departed from on
account of the subject or context in which the word had been used and that will be
giving effect to the opening sentence in the definition section, namely, ‘unless there is
anything repugnant in the subject or context.’

In view of this qualification, the court has not only to look at the words but also to
look at the context, the collocation and subject of such words relating to such matter
and interpret the meaning intended to be conveyed by use of words ‘unless there is
anything repugnant in the subject or context.’

While interpreting a definition, it has to be borne in mind that the interpretation placed
on it should not only be not repugnant to the context, it also be such as would aid the
achievement of purpose which is sought to be served by the Act.

Same word defined in the statute may not carry the same meaning throughout the
statute. The words which are used in declaring the meaning of other words may also
need interpretation and the legislature may use a word in the same statute in several
different senses. In determining whether a particular import is included in such words,
regard may be had to the answer which everyone conversant with the word, subject-
matter of the statute and to whom the legislation is addressed would give.

A definition is not to be read in isolation. It must be read in context of the phrase

which would define it. Where the context makes the definition given in the
interpretation clause inapplicable, the same meaning cannot be assigned.

IX. Legal Fiction

 A legal fiction is anything created by law, which, factually, might not be true but is
deemed to be so by law.

The effect of a legal fiction is that a position which otherwise would not obtain is
deemed to obtain under the circumstances.

In interpreting a provision creating legal fiction, the court must ascertain the purpose
for which it is created and having done so to assume all such facts and consequences
which are incidental or inevitable corollaries to giving effect to the fiction. However,
the court must not lose sight of the fact that an unforeseen event may give rise to
unusual situations.

Only the facts are deemed to exist under a legal fiction and not the legal consequences
which do not flow form the law as it stands. It also appears that if a legal fiction is
created by the legislature in an Act, it cannot be widened by the rules made under the
Act.

Dargah Committee v. State of Rajasthan: The Municipal Committee of Ajmer

carried out certain repairs that the dargah committee had failed to carry out under the
Ajmer Mewara Municipality Regulations: any money recoverable by the committee
shall be recovered as if it were a tax levied by the committee on the property and shall
be charged thereof. Issue: Whether such a tax imposed could be appealed as if it were
a tax? Held: Court says you must carry a legal fiction to its logical end. If the fiction is
that of a tax, it may be appealed as a tax.

X. “Shall” Provisions

The general rule is that an absolute or mandatory enactment must be obeyed exactly,
but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

The use of word “shall” is ordinarily mandatory, but it is sometimes not so interpreted
if the scope of enactment, or the consequences to flow from such construction would
not so demand.

“Shall” ought to be construed not according to the language with which it is clothed
but in context in which it is used and the purpose it seeks to serve. The meaning has
to be ascribed to the word “shall” as mandatory or as directory, accordingly.

When a statute is passed for the purpose of enabling the doing of something and
prescribes the formalities which are to be attended for the purpose, those prescribed
formalities which are essential to validity of such thing, would be mandatory. However,
if by holding them to be mandatory, serious general inconvenience is caused to
innocent persons or to the general public, without very much furthering the object of
the Act, the same would be construed as directory.

Where a statutory functionary is asked to perform a statutory duty within the time
prescribed therefore, the same would be directory and not mandatory. However, where
a statute requires a public functionary to do a thing within specified time and also
provides for consequences of inaction, it must be held to be mandatory.
 Where “shall” is substituted by “may” by the amending Act, it indicates that the
legislative intent is to make provision mandatory.

When the use of the word “shall” with respect to one matter in a provision (or scheme
of provisions) exists with the use of the word “may” with respect to another matter in
the same section of a statute, this situation will normally lead to the conclusion that
the word “shall” imposes an obligation, whereas the word “may” confers a
discretionary power.

DV Usman v. Food Inspector: Food adulteration Rule – public analyst “shall within
the period of 45 days from the date of receipt of any sample for analysis deliver to the
local authority, a report of the result of such analysis”. In this case, samples of ‘paan
supari’ were taken for analysis. The report was submitted late. The appellant claims
that prosecution cannot happen as the report was delivered late. In this case, food
adulteration causes injustice and it will be considered as a directory provision. It might
mitigate the value of the analysis if the public official doesn’t do it properly.

XI. Non-obstante clauses

Usually starts with “notwithstanding”

It introduces an overriding effect on the referred section in the clause.

If the clause states “notwithstanding anything contained in any other law”, it means
that all other laws are overridden but something in the same statute is not overridden.

“Notwithstanding anything contained in this Act” means other laws will still apply and
are not overridden by the application of this clause.

“Notwithstanding anything contained in any enactment” has an overriding effect on

all the laws but not things that are not mentioned in any enactment like principles of
natural justice, customary law etc.

P.E.K Kalyaniamma v. K. Devi (HMA)

XII. Proviso

An accepted rule of interpretation is that a section and proviso thereto must be

construed as a whole, each portion throwing light, if need be, on the rest.

A proviso must be read in context and not isolation. The real object of proviso should
be ascertained and it should be read along with the section as a whole. It should not
be rendered superfluous or redundant.

A proviso is generally used to remove a special case from general enactment and
provide for them specially.

A proviso qualifies the generality of the main enactment by providing an exception

and taking out from the main provision, a portion, which, but for proviso would be
part of main provision.
Where the enacting part is susceptible to several possible meanings, it may be
controlled by proviso.

“Exception” is enacted to restrain the enacting clause to a particular class of cases

while a “proviso” is used to remove special cases from the general enactment provided
from them specifically.
I. Dictionaries

When a word is not defined in the act itself, it is permissible to refer to dictionaries to
find out the general sense in which that word is understood in common parlance.

But in selecting one out of various meanings of a word, regard must always be had to
context as it is a fundamental rule that ‘the meaning of words and expressions used in
an Act must take their colour from the context in which they appear’.

When context makes meaning of the word clear, other dictionary meanings becomes
irrelevant.

The court would place such construction on the meaning of the words as would enable
the legislative intent being effectuated.

What however is necessary for applying the principle of interpretation of statute is to

take recourse to literal interpretation and only when same would result in absurdity or
anomaly, other principles depending upon the statute may be applied. Therefore,
dictionary meaning of a word is not considered when a plain reading of the provisions
brings out what was intended.

When an expression in any Act has been defined, the said expression will have the
same meaning and it is not necessary to find out what is the general meaning of the
expression. The definition given in the statute is determinative factor.

Too much reliance on the dictionary meaning without regard to context is not proper.

II. Foreign Decisions

Indian courts have permitted in the interpretation of Indian statutes with sobered use
of those foreign decisions of the countries which follow the same system of
jurisprudence as the Indian jurisprudence and which are rendered on statutes in pari
materia.

There is one qualification attached to the assistance of foreign decisions that prime
importance is always to be given to the language of the relevant Indian statute, the
circumstances and the setting in which it is enacted and the Indian conditions where it
is to be applied and that it is not to be forgotten that there is always an element of risk
in taking ready and hasty assistance from foreign decisions.

The Supreme Court is not bound by foreign court decisions, they have only a
persuasive value. But if they are in consonance with Indian law, the court can borrow
principles laid down in foreign decisions keeping in view the changing global scenario.

For beneficent construction of a statute precedent, foreign statutes may be referred to.

M V Elizabeth v. Harvan Investments: In this case the issue was whether the High
Court of Andhra Pradesh had the jurisdiction to rule upon the case. The Supreme
Court of India referred to the Admiralty Courts Act 1860 of the UK where the UK
legislation had expanded the jurisdiction of the High Courts of England and Wales to
be coextensive with that of the Admiralty courts. Although the Act did not apply to
 Indian Courts, the High Court exercised its jurisdiction and the reasoning given was
that the jurisdiction of the Indian High court cannot be restricted because of the failure
of legislature and held that the power Indian High Courts was coextensive to the power
of High Courts in UK. Hence we can see that a foreign enactment has been used as
an external aid of interpretation as an independent principle rather than a subordinate
principle.

III. Historical Facts and Surrounding Circumstances

The court is entitled to take into account such external or historical facts as may be
necessary to understand the subject-matter of the statute or have regard to the
surrounding circumstances which existed at the time of passing of the statute.

Like any other external aid, the inferences from historical facts and surrounding
circumstances must give way to clear language employed in enactment itself.

The subject matter with which the legislature was dealing, and the facts existing at that
time with respect to which legislature was legislating are legitimate topics to consider
in ascertaining what was the object and purpose of legislature in passing the Act.

Where it is important to ascertain ancient facts of public nature, recourse to historical

works, pictures, engravings and documents may be taken. Reference may also be made
to contemporary treatises which may have influenced the lawmakers in using a
particular phrase in statute.

The function of the court is to find out the intention of law-makers. Therefore, the
court has to discover that particular meaning of a given word in an enactment which
law-maker intended it to be given.

In case of older statutes, knowledge of the historical facts relating to them becomes
indispensable for understanding the meaning of ambiguous words and expressions
used in them.

IV. Subsequent Social, Political and Economic Development and Scientific Inventions

Generally, statutes are of ‘always speaking variety’ and court is free to apply current
meaning of the statute to present conditions.

Therefore, the reference to the circumstances existing at the time of passing of the
statute does not mean the language used, at any rate, in a modern statute should be
held to be inapplicable to social, political and economic development or to scientific
inventions not known at the time of passing the statute.

A statute may be interpreted to include circumstances or situations which were

unknown or did not exist at time of enactment of state.

Developments in science and technology must be taken into consideration while

interpreting an ongoing statute.

V. Effective usage and practice

 The doctrine is confined to the construction of ambiguous language used in very old
statutes where indeed the language itself had a rather different meaning in those days.

An executive construction is entitled to respect, but is not beyond the pale of judicial
review.

Executive construction is ordinarily allowed to prevail and shall be binding on the

authorities under the Act.

A uniform and consistent departmental practice arising out of construction placed

upon an ambiguous statue by the highest executive officers at or near the time of its
enactment and continuing for a long period of time is an admissible aid to proper
construction of the statute by the court and would not be disregarded except for cogent
reasons.

The controlling effect of this aid, which is known as the ‘executive construction’ would
depend upon various factors such as length of time for which it is followed, the nature
of rights and property effected by it, the injustice resulting from its departure and the
approval that it has received in judicial decisions or in legislation.

The principle is invoked where a statute is ambiguous but is shown to have been clearly
and consistently understood and explained by the administration of law in a particular
manner.

Where the government itself interprets a rule, reflecting its policy, contemporaneous
exposition of similar rule is another set of rules cannot play their part either to
influence court or the government to give the same interpretation or exposition to the
rules.

The principle is not decisive or controlling and has only pervasive value. If the occasion
arises, such interpretation may be even disregarded and in clear case of error, court
would without hesitation refuse to follow such construction.

The matters which are understood and implemented as legal practice for long and such
practice is supported by basic rule of law, such practice should be accepted as part of
interpretative process with aid of this doctrine.

VI. Parliamentary History

Legislative history within circumspect limits may be consulted by courts in resolving

ambiguities.

Reference to debates is permissible to ascertain at any rate the context, background

and objective behind them (Indira Sawhney).

Parliamentary debates at the time of introduction of Bill may be used as an external aid
in construction. It is a settled position there can be only limited use of parliamentary
debates. Court should not critically analyse the proceedings of Parliament.

The amendments considered during the progress of the Bill are ruled out as
inadmissible for purpose of construction of Act.
 The reason why a particular amendment was proposed or accepted or rejected is often
a matter of controversy, and without the speeches bearing upon the motion, it cannot
be ascertained with any reasonable degree of certainty. And where the legislation
happens to be bicameral, the second chamber may or may not have known of such
reason when it dealt with the measure.

The statement of objects and reasons accompanying a legislative bill cannot be used
to ascertain the true meaning and effect of substantive provisions of the legislation,
but it can certainly be pressed into service for limited purpose of understanding the
background, the antecedent state of affairs and the object that legislation sought to
achieve.

Reports of Commission or Inquiry Committees preceding the introduction of a Bill

have also been referred to as evidence of historical facts or of surrounding
circumstances or evil intended to be remedied and at times for interpreting the Act.

VII. Reference to other statutes

Another statute can be used in interpreting the statute under construction only when
it is shown that two statutes are similar.

Relying on interpretation of an expression given under other acts and bypassing the
definition clause in the Act concerned is not permissible.

Statutes in pari materia means statutes dealing with same subject matter or forming
part of same system. The rule of context which says that a statute must be read as a
whole as words are to be understood in their context, it permits reference to other
statutes in pari materia.

The sense in which a term has been understood in several statutes does not necessarily
throw light on the manner in which term should be understood generally, especially
when the statutes in question are not in pari materia and are not dealing with any
cognate subject and definition coined by legislature is an extended or artificial meaning
so assigned to fulfill object of particular enactment.

Use of same words in similar connection in a later statute gives rise to a presumption
that they are intended to convey the same meaning as in earlier statute have received
an authoritative exposition by a superior court, use of same words in similar context
in a later Act will give rise to a presumption that Parliament intends that same
interpretation should also be followed for construction of those words in later statute.

This rule will have no application when the decisions on the earlier Act are not
consistent or when they are in fact shown to be erroneous. It will also have no
application to a purely consolidating Act which affords no opportunity to Parliament
in any subsequent Act dealing with a related but identical subject- matter has taken
account of and adopted as correct all judicial pronouncements as to the meaning of
ordinary English words appearing in a statutory instrument made under an earlier Act.

Where two statutes dealing with same subject matter use different language, it is an
acknowledged rule of construction that one may be looked at as a guide to the
construction of the other. If one uses distinct language, imposing a penalty under
certain circumstances and other does not, it is always an argument that the Legislature
did not intend to impose a penalty in the later, for where they did so intended they
plainly said so.

Where judicial decisions take 2 different views of a statutory provision which is after
certain modifications, re-enacted, the change in the language may suggest the
acceptance of one view by the Legislature and a meaning consistent with that view
should be placed on the provisions re-enacted.

When the legislature makes suitable amendments to give effect to a proper judicial
decision, it should be inferred that the decision correctly interpreted the law before
amendment.

The change in language does not always indicate the change in construction too. The
alteration in language in or by a later statute may be the result of many factors, for
example, surplus age words may be omitted in later statute, new words may be added
which make the meaning more clear which was already implied, to improve the style
of statute wording may have been changed by draftsman. But where the existing words
are given their natural and ordinary meaning it indicates that there was no intention or
alteration of meaning.

Normally, a later statute is not used as a construction of an earlier statute,. Although,

the legislation has authority to amend the earlier Act or to so declare its meaning that
the declaration offended the plain language of the earlier Act, but the later statute
operated directly by its own force and not merely as an aid to construction of the earlier
statute.

It is clearly established that a subsequent statute on the same subject may be looked to
in order to see what is the proper construction to be put upon an earlier Act where
earlier Act is ambiguous.

The subsequent legislation, cannot alter the previous legislation, but if there be any
ambiguity in the earlier legislation then the subsequent legislation may fix the proper
interpretation which is to be put into the earlier.