Law-making: Legislature, Executive & Judiciary — Interpretation of Statutes Notes

Law-making: Legislature, Executive & Judiciary

Before Bentham’s principles of legislation make sense, you need the plain picture of who makes law and how. Three organs share the work: the legislature makes the law, the executive implements it, and the judiciary interprets and applies it. The judge’s duty, as this whole subject has taught, is to give effect to the true intention of the legislature — not to legislate herself. This topic frames Unit V.

Who makes law, and what is each organ’s role?

A modern State works through three organs, each with a distinct function in the life of a law:

The Legislature — makes the law. Parliament and the State Legislatures enact statutes. Law-making is their primary function: they decide what conduct to command, forbid or permit, and embody it in an Act. Bentham’s principles of legislation are addressed to this organ — a theory of how the legislator ought to choose what to enact.
The Executive — implements the law. The Government and its officers carry the law into effect — administering schemes, enforcing rules, and (through delegated legislation) making detailed rules under the authority of an Act. The executive applies the law to day-to-day administration.
The Judiciary — interprets and applies the law. The courts interpret statutes and apply them to disputes, giving effect to the legislature’s intention. The judge declares the law; she does not make it. Where the words are clear she applies them; where they are doubtful she uses the rules of interpretation (Units I–IV) to find the intention — but she cannot supply a casus omissus or rewrite the Act (Unit III).

The duty of the judicature. The recurring exam phrase — the “duty of the judicature” — is that the court must ascertain and give effect to the true intention of the legislature, and must not usurp the legislative function. This is the constitutional line between interpreting and legislating: courts interpret, legislatures legislate. (The fuller “intention of the legislature” discussion is in Unit I.)

Principle (separation of functions): “It is the province of the legislature to make the law, of the executive to enforce it, and of the judiciary to interpret and apply it; the court’s duty is to give effect to the true intention of the legislature, not to legislate.”

In Simple Terms: Law passes through three hands — the legislature makes it, the executive implements it, and the judiciary interprets and applies it. The judge’s duty is to give effect to the legislature’s true intention, never to make law herself. Bentham’s principles of legislation advise the legislature on what it ought to enact.

🧩 WORKED EXAMPLE — Court interprets, does not legislate

Facts. A statute clearly does not cover a situation that has arisen; a litigant asks the court to “read in” a provision to cover it, because it would be desirable policy.

Rule. The judiciary interprets and applies the law; it gives effect to the legislature’s intention but cannot legislate or supply a casus omissus (Unit III).

Apply. However desirable the addition, supplying the missing provision would be making law — the legislature’s function, not the court’s. The court can only apply what the legislature enacted.

Conclusion. The court declines to read in the provision; the remedy is for the legislature to amend the Act. The three-organ division holds: courts interpret, legislatures legislate.

flowchart TD
    ROOT["Law-making: three organs"]:::root
    ROOT --> A["Legislature — MAKES the law"]:::leaf
    ROOT --> B["Executive — IMPLEMENTS the law"]:::leaf
    ROOT --> C["Judiciary — INTERPRETS & APPLIES the law"]:::leaf
    C --> D["Duty: give effect to legislative intention, not legislate"]:::leaf
    A --> E["Bentham's principles advise THIS organ"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Key Points & Sources

The three-organ division of functions is basic to the rule of law and the separation of powers.
The “duty of the judicature” — to find and give effect to the true intention of the legislature — is the theme of Unit I (purpose of interpretation).
Bentham’s Principles of Legislation address the legislature: how it ought to choose what to enact.

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