Report No. 60
2.12. Interpretation may partake of the character of law-making.-
It is, of course, well-recognised that interpretation is not merely a process of spelling out the meaning by set guidelines. Sometimes, it has to partake of the character of law-making. While the judiciary would not have much scope for law-making where the language is clear and the purpose of the statute is definite, its scope for law-making is undisputed when the statute itself consciously delegates the creation of the norm of the judiciary. Interpretation is not pure mathematics, where the answers given by every person to the particular mathematical problem must tally with each other if the answers are correct. As we shall show later,1 a certain amount of latitude is left to those who have to interpret and, to this extent, interpretation resembles law-making. Morris Cohen pointed out, "You cannot construct a building out of the rules of architecture".2 As Judge Learned Hand3 said,-
"Of course, it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary."
1. Para. 2.13, infra.
2. M.R. Cohen Social Order, 173.
3. Cabell v. Markhans, 148 F 2d 737 (2nd Cir 1945) cited in Friedmann Legal Theory, (1967), p. 458.