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Report No. 60

2.13. Judicial "law-making in three situations".-

Julius Cohen1 has distinguished three main situations covered by the loose term "judicial law-making" relating to statutes-(i) One is very rare, namely, the usurpatory kind, where the clear 'language and purpose' of the statute are subverted and replaced by the court's own policy, (ii) a second (non-unsurpatory) kind is where, for some reason, the legislator has (in effect) consciously delegated norm-creation to the judiciary, whether because flexibility of administration is required (as in the Sherman Anti-Trust Law), or because conflicting views and interests within the legislature prevent agreement on anything but vague expression (iii) The third is where there is neither clarity of language and purpose, nor a conscious delegation, but single vagueness or ambiguity, or internal inconsistency of language, affecting the statutory words.

In this, as distinct from the first two kinds, the judicial search is for legislative meaning, and, thus, for legislative policy. The judicial task, in cases of this third kind, is to mend the legislative expression so as to yield a solution that can reasonably be attributed to the legislature, whether by surface search of the syntax, by reading in the context of the whole statute, by probing for a principle which the statute expresses, or for hints of the legislator's purpose, consciously or unconsciously held by him.

1. J. Cohen Judicial Legislation, (1961) 36 Indiana LJ 414, 419, 423, cited in Stone Legal System, (1964), p. 353.

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