Judicial activism

An analysis on the use of Judicial activism in statutory interpretation


Statutory interpretation is the process by which the courts apply legislation by interpreting a statute. Often an interpretation is necessary in cases which involve a statute. Not all statutes may have a direct and clear meaning. Therefore the vagueness and ambiguity that exist in certain words of the statutes are resolved by judges. A judge may consider the objective meaning and the reflection of legislative intent in text to interpret the statute and arrive at a conclusion. There are many factors that can create uncertainties as to the statutory interpretation which include drafting errors, unforeseen developments and political uncertainty. Uncertainties as to the interpretation of statutes can also arise when changes happen to the potential meaning of a word and derive the context from its usage. The conventional theories of interpretation do not provide a provision to interpret cases of uncertainties.

Though the application of conventional methods of interpretation may work in most cases, there will be some cases where even the most assiduous judge may feel that the words of the statute are analytically insufficient to be applied to the case. They might experience a frustration while applying the rules of clear statement that such application of the statute may not provide a fruitful result and can be a fertile source of judicial embarrassment. The plain application of the conventional methods may also result in arbitrariness and obfuscation in the making of judicial decisions. A prudent choice with a discretionary independence would be a just process for interpreting the statutes rather than following the conventional methods which lacks universal application.[1]

Discretionary interpretation is a process that is needed to be declared inevitable by the court. Judges should have the freedom to declare that the statute interpreted in a conventional method is insufficient and a prudent discretionary interpretation is necessary to reach a fruitful conclusion.  The absence of such a freedom creates serious difficulties in the lawmaking. The research paper will focus on how a doctrine of discretionary interpretation would work in actual practice and how it would improve the interpretive process.

Conventional theories of Statutory Interpretation

The three conventional strategies used for the interpretation of a statute are legislative intent, objective meaning and the influence of pre existing law. The concept of legislative intent works on the idea that the judges are required to work according to the legislature’s intent and the case of interpretation has to be approached with a legislative mind.[2] The ultimate purpose is to align judicial action with legislative intent, though it is known that it is philosophically problematic. Thus it is not the judicial power that is counted but the legislatures. Therefore Court resist an open interpretation and limits its decision making process to the language provided under the statute.

The second way to interpret a statute is through an approach of ‘Objective meaning’ where the statute is interpreted on the meaning that is attributed by a prudent person upon reading the statute rather than following the intent of the author. The objective meaning of a statute is controlling at ties and often limits the judiciary’s power of decision making.[3] It may collide with the intended meaning that the statute conveys and may produce unjust results. Though it is a known fact that the legislative intent upon which the statutory interpretation is bases may not be accurate to solve all the cases, the idea of objective meaning convince that such cases could be resolved by adopting the legislature’s general policies and purposes responsibly.Finally, a conception exist that a barrier might be crated by the influence of preexisting laws in interpreting the actual legal meaning of a statute. [4]

Other than the precedents, there exist statutory schemes, limitations on legislative power and constitutional principles which may affect statutory interpretation. Considering interpretation as an act of empirical exercise, the interpretative approach attains a new dimension of accuracy by judicial discretion. [5] The process of interpretation involves ascertainment of the facts, application of certain kinds of procedure, securing pardon, circumstantial evidences and shouldn’t be followed by the plane language of the statute.

Judicial activism in statutory interpretation

A number of scholars like Posner[6], Harwood[7], and Lewis[8] have defined judicial activism. It can be defined as a result which is achieved against the possible outcomes or a deviation from the usual behavior expected by the law. The exact meaning of what constitutes judicial activism may vary due to the lack of an intact definition which has universal application. Harwood defined the process as a deviation from the conventional methods such as breaking of precedents, relaxation of the requirements of justifiability, refusal to take an attitude of deference for legislative or executive power or judgment or the limited usage of constitutional statutes or binding precedents.[9] It is to be noted that not just the deviation from the usual pattern is used to define the process, but the result obtained from it. Exercising of judicial activism ensures that the end results are always just as this system is a tailor made process of analyzing the facts and circumstances of the case rather than blindly following the legislature.[10] It eliminates the lucid application of the plane meaning of the statutes that fails to consider the context of the case.

Judicial activism is also necessary because the administration of justice today has become a complex process engulfed by a relentless tidal wave of legislation and the language has been attracting more vagueness and ambiguity.[11] Interpretation is a process where the differences in opinions and deviations from common practices become factors that cannot be excluded.[12] An interpretation put forth by a judge by his examination of text, context and policy will appear to another person as a matter which is impermissible under the law. Another judge’s approach may appear to others to be a deliberate frustration of remedial legislation and an activism of a different sort, impermissible because it is designed to defeat the intention of parliament.[13] Due to this multidimensional approach, judicial activism has been facing criticism for non-democratic lawmaking, decision-making based on personal morals or preferences, and rewriting law under the guise of interpretation.[14] The process of interpretation is craft and judges are craftsmen who have to apply appropriate tools wherever necessary. They are more of finishers, polishers and refiners than legislators which require multiple degrees of varying thoughts in the process.[15] As the approach adopted by a judge is critical, he has to maintain a consistency throughout the process as it tend to affect the outcome of the interpretation. In the absence of consistency, interpretive outcomes become unpredictable and the task of those administering the law then becomes needlessly difficult.[16]

Judicial virtues in Interpretive Discretion 

Interpretive discretion is necessary in statutory interpretation to resolve the uncertainties lying in a statute. When the usual meaning of a statute leaves no application to a particular case or generates ambiguity, it is the discretionary power of the judges that comes as an institutional strength to identify the actual determinants of a statute. Five judicial virtues used in exercising the discretion are Hindsight, Particularity, Detachment, Rational explanation, Consistency and justice.


The ‘legislative intent’ that is followed in the conventional theory is based on the laws that was drafted with an anticipation on how it will affect the future. The legislative foresight may not be perfect due to the non predictable character involved in it. Using such laws to alleviate modern problems may lead to frustrations and uncertainty. if the legislative intent is blindly followed, the law may fail to address the cases clearly and may end up in generating erroneous results. This is where hindsight comes into play. The historical facts, circumstantial evidences and proofs are taken into consideration rather than the legislative foresight. Hindsight stands as a corrective measure to make good the errors and omissions that the conventional approaches has caused.


There are certain constitutional principles that tend to restrict legislation based on circumstances. Due to the categorical nature of the legislative action, they cause uncertainty in statutory interpretation. These rules may not be sufficient in awarding judgment to a case. It is a desirable and necessary aspect of the judicial office to resolve the uncertainty posed by the legislative action. The courts have to compensate for the legislative deficiency by adopting interpretative discretion that act beyond the fleece of legislation, incapable of accurate interpretation.


While interpreting a statute, the judges have no institutional or personal investment in the texts of the statute or the politics behind the drafting of that law or personal commitment to its contents. They just deal with the work of another branch of the government. Therefore judicial detachment is necessary in statutory interpretation to resolve the substantial uncertainty associated with the intended meaning or objective of a statute. It allows the court to maintain an independent view rather than holding on to the conventional approaches. The judicial independence helps in maintaining the heath of a democratic system.

Rational Explanation

The legislature lacks the practical matter of providing a comprehensive explanation to the application of its provisions on particular cases. The courts while interpreting the statute by exercising judicial discretion establish a connection between legislative action and judicial or administrative decisions which is necessary to ensure transparency in the administration of justice. By providing a rational explanation to the interpretation, judges add value to statutory law by supplying an ingredient of legitimacy which the legislature fails to provide.

Consistency and Justice

Adding consistency to the judicial process is the primary goal of interpretative discretion in statutory interpretation. Consistency is the dominant idea and various internal checks persist in the judicial process to ensure the same. it helps in eliminating the arbitrariness and vagueness that exist in the decision making process and guarantees equal protection for the citizens under the law. They establish a link between the statute and its interpretation. It also helps I n keeping a check on the governmental action by developing rational expectations.

The Portal to Portal Case: An analysis

The Portal case is a case concerning the payment of wages to the workers who worked in an iron mine. The conflict was between the iron miners and the owners of the mine. The dispute was regarding the calculation of wages of the miners. Their work schedule was such that on arrival, they change into working clothes, collect tools and equipments and then proceed to the portal of the mine and then they were transported to the working face of the mine where the operations happened. The wages for the workers were calculated only for the hours that they spend in the working face of the mine.  The mines put forth a demand where they claimed that the calculation wages must include the hours they spend on the mine as well as on the surface and this cause unrest within the industries of Southeast America. [17]

The Fair Labor Standard Act provided that an employee is entitled to the payment if his workweek has exceeded a certain number of hours. The workers spent eight hours in the working face of the mine excluding the time they spent in the surface for change of clothes collection of tools and the transportation. Thus interpreting the provisions of the FLSA Act, the workers are not entitled to an extra payment if only the working hours were considered. However if the time spend on the surface and transportation and is calculated, then the statutory maximum would be exceeded, and they would be entitled to receive overtime pay. The district court ruled in favor of the miners and instructed the company to include the hours other than on the working face to calculate the pay. The decision was appealed by the company to the U.S. Court of Appeals.

In the course of the litigation, three interpretations to the FLSA Act emerged. Firstly, the working hours include both the time that was spend on the working space and on the surface. Secondly, the working hours included everything except the times spend on surface of the mine. Thirdly, only the hours spend on the working face of the mine was calculated for the payment of wages. The aim of the Supreme Court was to identify the correct interpretation of the provision of the FLSA Act.The case was presented before a nine judge bench and seven out of them opted a conventional approach to the problem. Five of the judges held that the calculation of wages was in consistency to the provisions of the act. Two of them held that the calculation of wages was followed in accordance with the customary norms and the traditional pay practices intended by the Congress.

The other two judges approached the issue with an unconventional approach of statutory interpretation. They commented that the definition of workweek defined in the act was colloquial and lacked a technical meaning. The vagueness and ambiguity that existed in the act cannot be applied to the multifarious situations in the American industry. They held that the meaning of the term ‘workweek’ had to be interpreted through judicial proceedings. The primary issue in the problem was not a question of law, but fact. Therefore the interpretation of the term ‘workweek’ has to be backed up by judicial determination. The Portal case was one such case which threw light on the importance of interpretation in the judicial process.


In the near future, it is impossible to foresee a clear system of statutory interpretation which is adopted by a calculus of probable consequences. The cardboard structures will continue to rule the judiciary and destroying something so rigid and customary, is almost impossible. The traditional approach that statutory interpretation is nothing but finding answers fixed by the legislature. A dynamic interpretation is necessary as they have different meanings to different people, at different times, and in different legal and societal contexts. This will be one of the main reasons that will hinder the efficiency of the judicial office and cause an unhealthy severance between legal thinking and any other thinking. Judicial activism in statutory interpretation is necessary when the conventional theories of interpretation fail to fulfill the purpose. The interpretative discretion provides a realistic approach in extracting a clear and determinable meaning to a statute.

The application of the principles of statutory interpretation has always been a matter of nuance and empathy.[18] The success of the process lies in the capability of judges to conclude that more than one interpretation is possible and that conventional considerations do not favor a particular interpretive choice. Therefore a jurist has to act outside the purview of the restricted statutory framework to provide suitable end results. If the absurdities existing in the interpretive principles are not resolved they will play fast and loose with “plain meanings” which will create barrier in administering justice. The only solution out of this problem is the judges to act rationally and usefully by approaching the interpretation with a self-stultifying “technique “. Constructive and candid debate policies will enrich the long neglected discipline of statutory interpretation and the law making process in the future will grand more credibility and reliability on the judicial office.

[1]  Webster’s Third New International Dictionary  647 (2002).

[2] Philbrook v. Glodgett, 421 U.S. 707, 713 (1975).

[3]Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, A matter of Interpretation 3 (Amy Guttmann ed., 1997).

[4] Sinclair Refining Co. v. Atkinson, 370 US. 195, 202-203 (1962).

[5] . Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L J 1750, 1772, 1812-14,

[6] Richard A. Posner, Problems OF Jurisprudence (1990).

[7] Sterling Harwood, Judicial Activism: A restrained defense 2 (1993).

[8] Frederick P. Lewis, THE context of judicial activism: the endurance of the warren court legacy in a conservative age (1999).

[9] supra note.2, at 2.

[10] Id. at 3.

[11] 4RS French CJ, ‘What Were They Thinking? Statutory Interpretation and Parliamentary Intention’ The Sir Frank Kitto Lecture, Armidale 23 September 2011.

[12] Palgo Holdings Pty Ltd v Gowans [2005] HCA 28 (Kirby J).

[13] 3M Kirby J, ‘Statutory Interpretation: The Meaning of Meaning’ (2011) 35(1) MULR 113.

[14] supra note.2, at 10.s

[15] Corocraft Ltd v Pan American Airways Inc [1968] 3 WLR 714 at 732.

[16] Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56.

[17] Tenn. Goal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 592-97 (1944).

[18] Spigelman CJ, ‘The Intolerable Wrestle: Developments in Statutory Interpretation’ (Address to the Australasian Conference of Planning and Environment Courts and Tribunals, Sydney, 1 September 2010).

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