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Interpretation in Law: Chief Justice Barak's Theory*
Published online by Cambridge University Press: 04 July 2014
Abstract
The purpose of this article is to give a panoramic view of Chief Justice Barak's theory of interpretation, namely the purposive theory, which is contained in a six volume treatise in Hebrew, Interpretation in Law. In order to understand this theory, it is useful to imagine a spectrum where, on the one hand, there is the subjective intent – namely the meaning that can be deduced from the intent of the writer of the text – and, on the other hand, the objective intent – namely the meaning based on the fundamental principles of the legal system. Various legal texts are interpreted by placing them on different points of this spectrum in accordance with the relevant area of law. Accordingly, in defining the purpose of Basic Laws, Barak gives primary regard to the fundamental principles of the system, with very little regard to the intentions of the drafters. In contrast, the purposive interpretation of wills occupies the other end of the spectrum, with maximum regard for the subjective intention of the drafter and a much smaller regard for the fundamental principles of the legal system. After a brief review of the philosophical and theoretical application of the purposive interpretation of various legal texts, the article moves on to demonstrate, through decisions of Chief Justice Barak, the judicial application of the purposive interpretation in two of the most important fields of interpretation: constitutional interpretation and interpretation of contracts.
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References
1 See Barak, Aharon, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy,” (2002) 116 Harvard Law Review 16, at 64Google Scholar.
2 An additional sixth volume, Purposive Interpretation in Law, appeared last year (2003), summarizing and analyzing the different interpretive systems, and providing the theoretical basis for the purposive interpretation.
3 See supra n. 1, at 64.
4 See Dworkin, Ronald, “Judicial Discretion,” (1963) 60 The Journal of Philosophy 624CrossRefGoogle Scholar.
5 See supra n. 1, at 81-82.
6 Israel has yet to adopt a formal constitution. In its absence, several basic laws, some of which incorporate human rights, have been passed. There is a near consensus on seeing these basic laws as constitutional as a substitute for a formal constitution.
7 The existing legislation is protected by a “Preservation of Laws” clause, included in the Basic Laws.
8 See supra n. 1, at 71.
9 For an analysis of Barak's theory, see Shalev, Gabriela, “Constitutionalization of Contract Law” in Gambro, A. and Rabello, A.M, eds. Towards a New Ius Commune (Jerusalem, Harry Sacher Institute for Legislative Research and Comparative Law, 1999) 210Google Scholar.
10 See supra n. 1, at 75.
11 Ibid., at 78.
12 27 L.S.I 117, at 121. Section 25 of the Contracts (General Part) Law provides as follows: “25(a)A contract shall be interpreted in accordance with the intention of the parties as appearing there-from or, in so far as it does not so appear, as appearing from the circumstances.”
13 Section 26 of the Contracts (General Part) Law provides as follows: “26. Particulars not determined by or under the contract shall be in accordance with the practice obtaining between the parties or, in the absence of such a practice, in accordance with the practice customary in contracts of that kind, and such particulars shall also be regarded as having been agreed.”
14 Section 16 of the Contracts (General Part) Law provided: “Where a clerical or similar error has occurred in a contract, the contract shall be rectified in accordance with the presumed intention of the parties and the error shall not be a ground for rescission of the contract.”
15 Good faith is incorporated in the Contracts (General Part) Law in two separate sections. Section 12(a) incorporates the principle of culpa in contrahendo, which requires good faith in negotiations. Section 39 incorporates the German principle of “True und Glauben,” requiring good faith in the performance of contractual duties and in the exercise of contractual rights.
16 The State of Israel v. Aprofim Housing and Enterprise (1991) Ltd. 49(2) P.D. 265. For translations of selected excerpts from the case see (1998) 32 Israel Law Review 681.
17 United Mizrachi Bank inc. v. Migdal Cooperative Village (1993) 49(4) P.D. 221.
18 Ganimat v. The State of Israel (1995) 49(4) P.D. 589.
19 His recent and probably most important publication in English is mentioned above, supra n. 1.