This research paper focuses on judge role interpretation the provision of
statute made by legislature how far can judge go interpreting provision is
discussed in this article. It also discuss methods of Interpretation Of Statute
By Cardozo , tools which which are used by judge and some international and
national case laws are also discuss author opinion also taken into regard.
A judge's position is one that is vital. In managing and resolving cases with
the help of the current legal order, they are tools par excellence. They are
concerned with repairing the nature, legitimacy and sense of legal codes. The
realists put forward an argument that there may be many explanations why the
judge made his decision and it was not inherently necessary to provide legal
reasoning. The interpretation of legislation thus has become the perfection of
When a judge pronounces a verdict, it is not just because of the statute, but
also because of the judge's desire to determine what the legislature's purpose
was. The judge interprets the statue with a view of what he sees as the
Since law needs to be crafted such that in different situations it can be easily
applied, there will also be a lack of clarification or specificity. Language may
also produce vague, unclear or meaningless legislation, failing to achieve the
end towards which it is aimed simply by being poorly drawn up. Judges ought to
give effective significance to laws under such circumstances.
Cardozo stated that really reasons is that judge is under obligation, around the
limits of his potential of innovation , sustain the relationship between law and
morals, among the principle of jurisprudence and from reason and good conscience
. people frequently win or loose by judicial decision than they could by any
general act of parliament. Judicial decision impacts most people as well as
parties who are I litigation since the law frequently results what judge stated.
Scope Of Paper
This paper will focus on how judge use approach of interpretation of statute
while deciding case as there are two approach of interpretation of statute ,
methods of interpretation of statute which are invented by Cardozo. This also
show light upon tools which judge use while interpretation statute . in the
paper author give his view about as time passes situation also change and by
this judge also change their interaction about particular statute.
But as the legal realism school gained popularity at the beginning of the 20th,
Legal theorists started to challenge these assumptions for a century and called
on judges to justify the validity of their judgments more self-consciously. The
early legal realists were trying to find the "how the law operated" . by
adopting new perspective from areas of sociology and psychology legal realism
has contributed to universal identification that judge often make law explore it
Objective Of The Paper
- Explain the role and approach of the judge in the interpretation of
statutes discretion to the judges to extend meaning to the immediate textual
problem to secure the legislative primacy?
- Role and approach of the judge in the interpretation of statutes in same
principles limit the judiciary in encroaching on the legislative field in
spite of the presence of legislative discrepancies?
This Paper Focuses On role of judge in interpretation of statute with cases from
national and international perspective in these coinciding situation given
- The principle of interpretation which give the power of judges to look into
problem related to text to ensure there is supremacy of legislature but on the
side same principle restrict the judiciary to intrude in area of legislature In
spite of the existence of legislative inconsistencies.
- This paper shall include appropriate method of interpretation adopted by
As Cardozo aptly noted in his book Nature of Judicial Process, in arriving at a
decision, a judge can be impaired by his conscious and subconscious influences.
And, as promoted by Western thinkers during the same time, he can also refer to
different theories of justice.
Rawl's Punishment Philosophy
The philosophy of social contracts has been promoted by Rawl and he pointed out
that justice is the social institution's first virtue. In Indian decisions,
Rawl's philosophy of justice that inculcates the questions of rights , social
equity, democracy etc. will clearly be observed.
In his novel, Rights Study, Ronald Dwarkin stresses the importance of the rights
of persons. Himat Lal K. Shah v. Police Commissioner
, protecting the common
citizen's right and freedom to hold public meetings on the streets and the
degree to which the state could control it, marked a significant step in
preserving the principles of freedom of justice.
Utilitarian Justice Philosophy
Jeremy Bentham promoted his popular utilitarian philosophy, arguing that the
primary objective of delivering equal justice to the largest number of citizens
should be to pass a statute.
Amartya Sen's Theory Of Justice
Amartya Sen advocated the principle of social choice, which argues that a
statute should be enforced to consider society's desires and should be based on
the desire for justice.
Gandhian Theory Of Justice
It is founded on reality, equality and social justice values.
Lok Adalath 's idea is a creative Indian addition to world jurisprudence and is
based on Gandhian values.
Here are two opposing views on how judges, the stringent, literal approach and
the more permissive, purposive approach, can determine the significance of a
The literal approach: this concept of judicial interpretation claims that, in
order to build its meaning, the judges should mainly look at the language of the
legislation and, except in extremely restricted cases, they should not look
beyond or behind the legislation in an effort to locate its meaning. In the
English legal system, the literal approach is prevalent.
The purposive approach opposes the restriction of the quest for meaning by the
judges to a literal construction of the language of the law itself. It indicates
that, where appropriate, the interpretative function of the judge should include
the power to look beyond the words of the statue in search of the reason for its
enactment, and that meaning should be interpreted in the light of that intent
and in order to give it successful.
The Cardozo, With somewhat more specificity and also more conservative The word
"law" means the body of rules and standards that a court is likely to accept as
authoritative in reaching its decision. Cardozo's main focus was law is not
problem of dialectic but Instead, it is the derivations and modifications of the
rules, the judgments and judgments Implementation of laws by the legal process,
as well as the ramifications Of such systems.
To Cardozo, a law is inherently a law. Positive law, one approved by the state's
power. This, The position is evident in his continuing concern with the
judiciary Method, and in several passages it is explicit.
Rule Of Interpretation Of StatuteThere are conventional rules of interpretation of statute given below:
1st Rule Literal Interpretation
According's to this rule judge should accept words mentioned under provision of
that law . this rule is also called as plain meaning rule . The first and
paramount step is to analyse the vocabulary and the literal sense of the law in
the process of interpretation. The key rule is that words be interpreted as they
are. The rule should only be enforced where the meanings of the words are
straightforward, i.e. words should be easy so that the language is clear and
only one meaning can be extracted from the law. It should be remembered.
Legislatures also contain "definitions" provisions within a statute that
specifically describe the most relevant terminology used in the law, eliminating
If the words are understandable they must be put to practical use in even
though intent of legislator may be divergent and outcome must be unpleasant and
2nd Rule Is The Mischief Rule
It is rule of statutory interpretation is mischief rule which aims to establish
the legislator's intention. It arises from Heydon's case in UK its prime
objective was to figure out the mischief and flaw that statute in issue is
intended to cure.
This was acknowledge in the Heydon Case
. Where it was mentioned that when
interpreting a statute, there were 4 things to be take into account.
- Before Statute was enacted what was common law
- What was the "mischief and mistake" the common law did not offer for?
- What solution has been resolved and approved by Parliament to treat the
- What is the genuine purpose for the remedy?
The application of this rule allows the judge more discretion than the literal
and golden rule, since it helps him to decide on the will of Parliament
efficiently. It may be claimed that this violates the sovereignty of Parliament
and is anti democratic, since law making decisions are taken away from the
The Golden rule, or British rule, is a method of statutory interpretation that
requires a judge to depart from the usual sense of a term in order to prevent an
It is compromise among literal rule and mischief rule . like literal rule it
offer words of statute simple and normal meaning . yet when it take unreasonable
result that is not likely to be intention of legislature judge can leave from
this meaning . if there is one word but there are many meaning then judge can
pick the better meaning.
If there is one word and have only one definition but implementing this would
result in inadequate decision so judge can seek divergent meaning.
Rule Of Harmonious Construction
When there is clash between two or more act or statute or two or more part of
act or statute rule of Harmonious Construction should be espouse.
The rule follows a very clear presumption that, as per law, each statute has a
meaning and intent and should be considered as a whole. Interpretation
compatible of all law or statute should be approved . in the situation where it
is unfeasible to coordinate both the provisions, the court judgment in respect
to provision shall be prevail.
Rule of harmonious construction which is the rule which wise to follow to
interpretation of statute also. An interpretation which makes enactment
compatible whole should be objective of court Construction must be followed
which prevent inconsistency or repugnance between the various sections or parts
of the law.
It is an accepted law that it is important to prevent an interpretation that
results in suffering, inequality, inconvenience or inconsistency and follow one
which serves the concept of justice.
Method Of Interpretation Of Statute By Cardozo
Four leading methods of legal analysis are defined by Cardozo:
- The method of logic (or "analogy," or "philosophy") that attempts to
expand legal concepts in ways that maintain logical consistency;
- The method of history (or "evolution") that advertises the historical
roots of the rule or definition of law;
- The method of custom (or "tradition") that sees social traditions as
Analysis Of Methods
Method Of Logic
Cardozo serve method of philosophy first Since it has some "presumption" within
it favor " it is very amazing to know that logical progression recognize with
rule of analogy and it is remarkable to discover whole called as method of
philosophy as philosophy cover logic . Again, he discuss of "the philosophical
method , i.e., of logical development . In the lack of any appropriate
justification to the contrary method of philosophy is used . It would seem that
the method of philosophy for Cardozo was It is similar to the procedure of
logic, or the philosophy is seen by him as being Mere logic.
Cardozo didn't just have the equivalent of Philosophy and logic, but rather
considered was a simple adherence to precedent A logical perspective , and thus
a philosophical one,
Cardozo saw a partial solution to the issue of giving judge-made law
sustainability. "He considers the judge's job in applying this strategy as the
duty of" keeping law right the In its reaction to deep-seated and imperious
To further explain the philosophical method, he switches to the case in which
the method is Implemented. The cases studied are primarily those in which a
purely logical and logical case is used .A severe injustice has resulted in the
unbending application of a standard of law, or that class Cases in which an
injustice has been avoided by reverting to a contrary theory.
He knows that emotion may not yield to logic and that reason must govern the
play of rationality feeling. Cardozo finds out that this method of philosophy is
misused when it is The process and its results are regarded as final and
The Methods of History, Tradition and Sociology
Cardozo explains the other three selection methods or concepts that guide the
judge. In the direction of the growth of the living law system . These are
historical approaches, custom and sociology. On the method of history, it does
not pause long, for him the method of history is mainly an examination of
beginning as against to method of philosophy or logic which are principally work
It is evident that in growth of process of history he restrict that method and
clarify a issue in law rather that solve it . similarly understandable is
Cardozo's denial to accept of historical school of jurisprudence for example
that developed 19th century by Savigny.
Cardozo accept that growth of positive law has happen in historical backdrop .
he noticed that growth of positive law contemplate apart from that context would
be absurd for them whom interpreting it
It looks as it is lucid that affinity does not rest upon with this historical
school however he acknowledge its usefulness in field fir instance
interpretation of law related to feudal tenure and contracts.
The Method of Sociology. The Judge as a Legislator
From the three process of selection of philosophy of history and custom we
observe that no one no single method is free of any residue of one or more of
the other customs.
Cardozo recognizes the sociological method as a broader and more all-inclusive
one. Process in contrast to each of the previous three.
Since this sociology approach is supposed to be the instrument There must be a
restriction to the procedure to stop its use, or the judge's uncontrolled
practice. For Cardozo, the form of sociology is the The "gaps in the written
law" system par excellence for filling up.
Cardozo is not so much worried about the growth in the distance to be covered.
As he is with "the theory that dictates how to fill them, whether or not they
are to be filled." Scale, be it big or tiny. The sociology method is studied and
defined by Cardozo, with a class of cases both in Constitutional rule and
private law of some divisions.
He finds the field of Constitutional law is probably the most suitable for the
use of this strategy, because The Constitution encompasses a greater region than
most codes and rules.
For Cardozo, the mechanism In these cases, sociology should be used to describe
liberty, but with the reservation that A component of one or more of the other
strategies can be used.
Edwin Patterson states of Cardozo's sociology method: "the fourth method" is
that of sociology. Sociology, like the other three, does not organise. It is
subordinate or inferior in a way, To them.
For Cardozo, the method of sociology is the system through which the end of the
law , i.e., the The welfare of society is served.
Adherence to Precedent. The Subconscious Element in the Judicial Process.
Cardozo then shifts his mind to the value and meaning to be placed in
Precedents He analyses a variety of cases in the areas of substantive and
adjective law, and sees in those fields the need for growth. Though impressed
The increasing discussion as to whether the law of precedent conformity should
be Abandoned, he reaffirms his stance that precedent conformity should be the
norm . He would not compromise the legal order 's continuity and symmetry. For a
number of discrete cases.
Tools Used In Interpreting Statute
Judges use a number of methods to assist them in interpreting laws, most
commonly depending on five kinds of interpretive methods: ordinary sense, legal
context, building canons, legislative history, and proof of how a statute is
- Molar Mal v. Kay Iron Works (P) Ltd.
Although reiterating that the statutory construction rule must be observed by
the courts, which allows the court to take the terms as used by the Legislature
and give it the sense that necessarily implies, the Court held that there is an
exception to that rule.
Observed by this Court:
Exception come into picture when implementation of literal form of words results
in unreasonableness , irregularity or when it is presented that legal part in
which words used or by studying the law as whole it needs distinct
- Mangin v. Inland Revenue Commission
It can be inferred that neither injustice nor absurdity was intended as the
purpose of the creation of a statute, or to determine the will of the
legislature. Therefore, if such a result is created by a literal interpretation
and the language accepts an interpretation that would preclude it, such an
interpretation may be implemented.
- International Approach
In virtually all common law jurisdictions, the issue of legislative
interpretation has been a matter of substantial judicial controversy.
- In Town Vs Eisner Justice Homes Said
Word are not crystal , clear and stable . it is living idea and it may
differ in complexion and content according to situation.
- In Jones Vs Wroththam Park
Jones said in this case
I am not unwilling to take on a purposive construction where to put in literal
definition of legislative language which lead to outcome which understandably
defeat the purpose of the statute but in doing this duty court of justice
involved in one of construction even where it is required to reading into
statute which are not clearly encompass in it.
Interpretation Of Statute By Judge Changes With Time so Judges can
interpreted statutes in literal form as well as purposive approach judges
international depends upon situation of case that has been there . for
example in power of parliament to amend constitution has been interpreted in
different times in different cases.
- As in case of Shankari Prasad case
Supreme Court assert the parliament's power to amend the constitution under
Article 368 Constitution of India it incorporated power to amend fundamental
- Sajjan Singh case (1965)
In this cases Supreme Court observed that Parliament can amend any portion
of Constitution as well as fundamental Rights.
- Golaknath case (1967)
It is said that parliament cannot amend fundamental rights , It also mentioned
that Article 368 gives the process for amending the Constitution, but does not
grant the power to amend the Constitution to Parliament. This case bestowed a
'transcendental status' upon fundamental Rights.
- Keshwananda Bharti Case
Supreme court overruled Golaknath judgment and stated parliament can abridge or
take away fundamental rights ,It laid down the basic structure of constitution ,
it ruled that constituent power under parliament under Article 368 does not
enable it to alter basic structure of constitution.
So from this we can see and analyze that how judiciary interpreted these cases
in different time and different situation .
Author have view that judges should interpret in literal form because soul of
statute can be found when it is made or drafted by law makers but if there is
any section , ambiguity , vague in particular section of the particular statute
than it judge should interpret in purposive form and judge should apply their
mind on it judge should look beyond words given under statute .
See every case has their own circumstance and situation so as author point is
that there can flaws in statute law maker at time of drafting not show light
upon it and cannot clarifying which create chaos and confusion in future
whenever case arise in future judge should interpret it and correct flaws or
mistakes in that statute but if statute is clear and understandable and were
there is no glitch in statute which clearly resolve the case and is justified
than judge should restrict itself their power to interpret statute its own way
in this way legislative importance's can be placed.
In end author want to say that judge should interpret statute consciously and
effectively . judge should observe statute meditatively and then only judge can
point out flaws about statute. judge should first interpret statute as
legislature had drafted it but judge come across some mistakes and flaws which
can arise as time passes situation its authenticity also changes . judge should
apply his mind and can rid of flaws and mistakes are their in statute.
not saying that judge should only interpret literal form only or purposive
approach only author would meant that if the meaning is clear in provision of
particular stature and there is no mistakes or flaws in it judges should
interpret as words given in statute so that importance of lawmaker or
legislature can taken regard . but if there is mistake judge should rectify it
- Aneesha Dominic , Various Theories of Justice In Indian Judgments
- Mayank Shekhar , Rules of Interpretation , April 1, 2017,
- Queency Pereira Benjamin Cardozo's Opinion On Judicial Process , file:///C:/Users/admin/Downloads/cardozo.pdf
- Valerie C. Brannon , Statutory Interpretation: Theories, Tools, and
Trends, April 5, 2018
Written By: Sparsh Dinkar Mishra
, BALLB - Symbiosis Law School Pune
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