w and then in the right path as to
some particular item where it had gone astray.

In Anglo-American law we do not think of analogical development of the
traditional materials of the legal system as interpretation. In
Roman-law countries, where the law is made up of codes supplemented
and explained by the codified Roman law of Justinian and modern usage
on the basis thereof, which stands as the common law, it seems clear
enough that analogical application whether of a section of the code or
of a text of the Roman law is essentially the same process. Both are
called interpretation. As our common law is not in the form of
authoritative texts, the nature of the process that goes on when a
leading case is applied by analogy, or limited in its application, or
distinguished, is concealed. It does not seem on the surface to be the
same process as when a text of the Digest is so applied or limited or
distinguished. Hence it has been easy for us to assume that courts did
no more than genuinely interpret legislative texts and deduce the
logical content of authoritatively established traditional principles.
It has been easy to accept a political theory, proceeding on the dogma
of separation of powers, and to lay down that courts only interpret
and apply, that all making of law must come from the legislature, that
courts must "take the law as they find it," as if they could always
find it ready-made for every case. It has been easy also to accept a
juristic theory that law cannot be made; that it may only be found,
and that the process of finding it is a matter purely of observation
and logic, involving no creative element. If we really believed this
pious fiction, it would argue little faith in the logical powers of
the bench in view of the diversity of judicially asserted doctrines on
the same point which so frequently exist in our case law and the
widely different opinions of our best judges with respect to them. As
interpretation is difficult, when it is difficult, just because the
legislature had no actual intent to ascertain, so the finding of the
common law on a new point is difficult because there is no rule of law
to find. The judicial and the legislative functions run together also
in judicial ascertainment of the common law by analogical application
of decided cases.

As interpretation on the one side runs into lawmaking and so the
judicial function runs into the legislative function, on the other
side interpretation r