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The Green Bag
is Austin's term, "spurious interpreta tion,"5 to be employed, namely, in the sense not of finding a new rule, but of finding a new rule by an unsound process. If the new rule is found by a sound process we should not accuse the judge, as Austin did, of "spurious inter pretation." His terminology was out of joint in permitting him to treat inter pretation, in the sense of finding some new rule, as a fiction. His objections to what is here called selective interpreta tion have become obsolete with the pass ing of the school of which he was the able exponent. The real fiction is found not in the Austinian conception of "spurious interpretation," but in that of "genuine interpretation," namely, the concept that the meaning of law is fixed from the moment it leaves the hands of the law maker and is to be construed solely with reference to the law-maker's will. That notion, which shows itself, for instance, in the conception that the meaning of the American Constitution was absolutely determined in the eighteenth century, needs to be got rid of. In this emphasis on the necessity of selective interpretation and of judicial legislation there is implied no abandon ment of the principle of stare decisis. That judges are bound by prior decisions goes without saying, and that principle holds good with the sole proviso that it must not be carried to extravagant lengths. The duties of judges are to administer the law that is in force quite as much as to make law; in fact the second duty must always yield prece dence to the former, and there can be no duty or right of judicial legislation except in situations where there is a want of law and the judges are called upon to fill up the gap. The first stage in the process of ad• Pound, op. cti., p. 367.
judication is to ascertain whether there is law governing the situation, and if the law exists to state it. This might be termed the process of law-finding, but for the connotation of determination attaching to the word "finding," and but for the unfortunate association which "law-finding," at the hands of judges devoted to the historical doc trine, has had with law-making. The equivocation may be avoided by speak ing of this as the process of law-perceiv ing, or law-perception, as finding in the sense of getting at something which already exists, rather than of determin ing something that ought to exist. The judge must ascertain whether there is a rule in existence which has the force of a mandate. It is not sufficient that a precedent be found, the precedent must have mandatory force, otherwise it is not law. The historical school, by los ing sight of this fact, fell into the error of finding law to exist which as a matter of fact did not exist, though it had ex isted at some previous time. The his torical school thus employed a fiction by means of which they conceived of that being law which as a matter of fact was not, and from spurious inter pretation of that sort judges ought to be free. If there is clearly law in force governing the matter in hand, no act of interpretation is indeed necessary, save only in developing the corollaries of the principle obtained; and these corol laries may be a matter of such positive demonstration that the act of inter pretation will be analytical and not selective. If the law that is sought for clearly exists, and can have but one meaning, there is of course no oppor tunity for selective interpretation, and the court does not legislate, but merely applies existing law. A great deal of the popular criticism of the courts for overturning statutes on the score of
