Genuine and Spurious Interpretation unconstitutionality would no doubt be mitigated if the people could be shown clearly in how many cases the action of the court is administrative and not legislative, and that where courts have legislated it is because they have been compelled to legislate by want of law. A more difficult problem confronts the courts when the law is itself obscure, when a rule laid down in previous caselaw appears to be discredited, or where the obscure corollaries of an accepted rule have to be elaborated. Courts are then driven to the exercise of their second function, that of selective inter pretation. They have to deliberate upon the various possible meanings and choose what appears to be the soundest explana tion. They are concerned with what, for lack of a better term, may be called an indefinite meaning — which is prop erly speaking no meaning at all, but what is referred to in the quotation at the head of this paper as an "innomi nate form." A strictly analytical inter pretation would nearly always in such cases state the rule too indefinitely, yet the closer the approximation to an analytical interpretation, based on socio logical as well as legal premises, the higher will be the degree of validity of the selective interpretation, and the less will be the extent of the resort to judicial legislation. The further the court wanders, on the contrary, from a purely analytical interpretation, in selecting solutions alien to prevailing popular habits of thought, the more the court subjects itself to possible cen sure for propounding a "spurious inter pretation" of the matter with which it has to deal. Professor Pound believes that judicial legislation is a necessity: "Within some what wide limits courts must be free to deal with the individual case so as to
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meet the demands of justice between the parties."6 He considers, however, that much more attention should be paid by legislatures to the quality of their legislation, and that obnoxious rules should be met squarely and fairly by legislative repeal and not left to the courts to interpret out of existence. He thinks that in this way much cause for contention between the courts and the people would be removed, and that the strain "unnecessarily" imposed upon courts by compelling them to do what should be the work of the legislature would be relieved. It is highly desirable, in the view of the writer, that legislatures relieve the courts of the task of performing so large a share of the legislative function as now devolves upon them, but however de sirable this may be, it is unlikely that we are soon to see legislatures grow into strong juristic agencies capable of shoul dering the heavy tasks which they have turned over to the courts. It is rea sonable to look forward to a consider able improvement in the quality of statute legislation and perhaps to a more intelligent formulation of organic law, by more effectual methods of amend ment, but it is extremely doubtful if such improvements would relieve the courts of any considerable amount of the responsibility of filling up the larger as well as the smaller gaps of a legal system that can never be complete even in its main features. The real strain imposed on the courts would appear to come not from the burden or the nature of their tasks, but from the misunderstanding which the people have of the functions of the courts — a misunderstanding intensified by the lack of candor in judicial reason ing and by the deception caused by the 'Op. cti.. p. 365.
