Genuine and Spurious Interpretation contemporary culture which maintains and reacts upon the law. In this view the present is disfranchised, and in that view of the case, it is hard to see any valid reason, when we cannot trace law to its primeval root, for pre ferring one developmental stage of cul ture to another as a means of elucidating it. For these reasons the Kohler criterion seems unscientific, as erroneously over valuing the temporal element. Con temporary culture is not less necessary than past culture to throw light on the meaning of any law, unless an hypothesis of implicit repeal is to be carried to unprecedented lengths, and such a theory of implied repeal seems to be involved in Kohler's apparent assumption that a law is alive at the moment of origin, or in the stage of active legislation, and is thenceforward to be interpreted only retrospectively. The Kohler criterion is dogmatic, rather than analytical. Divested of its dogmatism, it would read somewhat as follows: Rules of law are not to be interpreted according to the will of the law-maker, but according to the thought of the whole people; they are not to be interpreted solely according to the cul ture from which they have been formed, but also according to that culture through which they are maintained and in which they have their being. That such a formula would be prac tically applicable, and of any great assistance to the judicial interpreter, is unlikely. The difficulties that are so conveniently removed by the historical rule of interpretation re-appear as soon as this aid is withdrawn. Our judges have to interpret a living and contem poraneous law, and they have to heed, above all else, the thought-currents of their own time, in which they are them selves swept along, though with more
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circumspection and with better oppor tunity for steering a safe passage, it is to be hoped, than those charged with less weighty undertakings. In reaching these selective interpretations of the meaning of living laws, sociological understanding will no doubt be of assistance, but there can be no socio logical key that will unlock all problems of the interpretation of statutes. tive Theinterpretation judge must legislate, is legislation, and | selecwhilei analytical interpretation, from the pointj of view ofact. istrative legislation, The spectre is a purely of judicial adrninj usurpation conjured up in the minds of those who dread judicial legislation in every form, and would like to restrict the courts to purely administrative functions, will never vanish. Selective interpretation is a necessity of every system in which the judiciary is clothed with any authority. But one cannot jump to the conclusion that the legis lative powers of the judiciary are un limited. On the contrary, interpreta tion itself discovers the legal limits to its authority by the very act of inter pretation. Furthermore, it itself per ceives the dangers of erroneous inter pretation and is on its guard to avoid them, without the necessity of rigorous statutory inhibitions. These precau tions should become more certain and effective with the growth of a scientific legal system, and the chief desideratum, at the present time, is that selective interpretation should free itself from all figments and sophistries and evolve higher virtues of prudence and selfrestraint. The dogmas inherited both from the Analytical and the Historical schools, to use Professor Pound's nomenclature, should go, and dogmatic interpretation should be abolished. In this sense only
