Tiebreakers in Israeli Statutory Interpretation

Abstract

An Israeli judge faces a problem of statutory interpretation. She applies, to perfection, the complex theory of purposive interpretation developed by former Supreme Court President Aharon Barak. Might she still find that the interpretive scales are perfectly balanced — i.e., that she faces an interpretive tie? And if this can, indeed, happen, how should she break the tie? Israeli law furnishes judges with tiebreaking rules in tax law and in criminal law. It provides no generally applicable tiebreaker, however, for use in other areas of the law. This paper argues that the tax-law and criminal-law tiebreakers are inconsistent with the Israeli theory of purposive interpretation. The Israeli theory fits better with the approach taken in the rest of the law — namely, the absence of a tiebreaker, which forces judges to rely on the theory of purposive interpretation alone, or to find further guidance outside the law.