Abstract
After a brief survey of the Israeli legal system, I will elucidate how the method of judicial interpretation used in Israeli courts is applied by means of an example of the judicial interpretation of section 37 of the Land Appreciation Tax Law (1963) presented by Judge Grunis in the Shadmi case. This case reveals a controversy among the judges of the Israeli Supreme Court over the notion of “linguistic possibility”. As this notion is one of the judicial criteria for appropriateness of purposive interpretation, the controversy is crucially important to statutory interpretation. One of the judicial criteria for appropriateness of interpretations is that the interpretation should be linguistically possible; the controversial question is what “linguistic possibility” means. Two views as to what makes an interpretation of a given expression linguistically possible are suggested in the Shadmi case:
The “empirical” view saying that an interpretation of a given expression is linguistically possible if the expression is occasionally used and understood as having the meaning suggested by the interpretation in question.
The “theoretical” view saying that an interpretation of a given expression is linguistically possible if there is a method of interpretation that suggests, when applied to the expression in question, the same meaning that is suggested by the interpretation in question.
The Supreme Court preferred the theoretical view of “linguistic possibility”; this means that when a translator endeavors to translate any section of Israeli law she must know how the section in question is interpreted by the courts when they apply it.
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Notes
Religious courts are authorized by Israeli law to rule in matrimonial issues of citizens of the religion in question according to that religion’s law; rabbinical courts, for example, are authorized to rule in matrimonial issues of Jewish citizens according to the Jewish law.
On the method of interpreting statutes used in Israeli courts and on its relation to Barak’s jury-prudence, see [2].
Barak [4, 13].
“Ownership” of real estate in Israel usually means leasing rights from the Israel Land Administration for a period of 49 or 98 years; this leasing is called “long term lease” or “perpetual lease” since as a rule it can be renewed.
The taxed profits are calculated by deducting the shekel value of the acquisition—the acquisition value—and certain expenses from the shekel sale value of the sold right, after accounting for the effects of inflation in the interim period. The land appreciation tax has various types of discounts and tax-exempts. In particular, the sale of a property by an individual who has not sold another residential property in the 4 years preceding the sale under consideration is often exempt from real estate appreciation tax. An apartment whose sale meets this condition or any of the other conditions specified in the law entitles the seller to get a tax-exempt status; it is called, accordingly, an “entitling” residential apartment”.
If a seven apartments building is built on a certain land lot then the lot is divided formally to seven shares and it is seen as if each apartment is built on one of these shares; each of the shares of the lot is said to be “attached” to one of the apartments.
Tax authorities versus Shadmi, 925.
Ibid.
Shadmi’s further discussion, Judge Naor, Section 4.
Ibid., Judge Naor, Section 6. The land appreciation tax has various types of discounts and tax-exempts; the type relevant to the case before us is called “tax-exempt due to entitling residential apartment”. It applies to sales of residential apartments by individuals who have not sold other residential apartments in the four years preceding the sale under consideration. An apartment whose sale meets this condition is called an “entitling residential apartment”.
The Chief Officer of the Land Appreciation Tax versus Ben Ami 265/79, P.D. 34 (4) 701 (1981).
Shadmi’s further discussion, Judge Naor, Section 6.
Section 49a(b)(1) of the law is interpreted as saying that in order to determine the land appreciation tax to be imposed on tax-exempted owners in a partial sale transaction, the owners’ profits are calculated by deducting the value of the property (the apartment and the land lot) on the day of the original acquisition from the value of the land lot entrusted to the contractor with all its building rights—including the shares of the lot that will be attached after the construction to the payment apartments. Then, in order to take into account the tax-exemption, the value of the original apartment without the unutilized building rights is deducted from the owners’ profits—and the result is the gain taxed under the Land Appreciation Tax Law in partial sale transactions where the owner is tax-exempted (Tax authorities vs. Shadmi, 926, 927).
Shadmi’s further discussion, Judge Grunis, Section 15.
Tax authorities versus Shadmi, 926; see footnote 14.
Shadmi’s further discussion, Judge Grunis, Section 9.
See Shadmi’s further discussion, Judge Grunis, Section 9.
Ibid., Judge Grunis, Section 12.
Shadmi’s further discussion, Judge Grunis, Section 13.
Ibid., Judge Grunis, Section 14 (my emphasis S.A.-A.).
Ibid.
In fact, this natural conclusion is based on the metaphysical assumption that (outside science fiction) there are no loops in time, which can be phrased in the terms of mathematical set theory as follows:
The order relation ‘≤’ (defined: ‘y ≤ z’ if ‘z is not prior in time to y’) on the collection of dates is anti symmetric; namely: if x and y are dates then
$$ {\text{If y}} \le {\text{z\,and\,z}} \le {\text{y\,then\,z}} = {\text{y}}. $$This metaphysical assumption is indeed necessary for Judge Grunis’s reasoning; it is necessary in order to infer from the assumptions that the “acquisition date” cannot come before the date of the combination transaction nor can it come after it the conclusion that the “acquisition date” is the date of the combination transaction. Suppose that there was a loop in time and a certain time unit repeated itself. Namely, suppose that there was some number K such that the time unit at the Kth place in the sequence of time units repeated itself and occurred in the Nth place as well as in the Kth. In that case any time unit that precedes the Kth place comes definitely before the unit that repeats itself, and any time unit that succeeds the Nth place comes definitely after the unit that repeats itself. However, any time unit placed between the Nth and the Kth places does not come before the time unit that repeats itself (as it succeeds its first occurrence) nor does it come after it (as it precedes its second occurrence). The crucial point is, of course, that there is no reason to assume that all time units that are placed between the Nth and the Kth places are identical to the one that repeats itself. This metaphysical assumption is an example of a semantically cued unspoken assumption of the kind discussed in [1, 728].
On the other judicial criteria for appropriateness of purposive interpretation see [2].
Shadmi’s further discussion, Judge Grunis, Section 15.
Ibid.
Ibid.
Ibid., Judge Grunis, Section 13 (my emphasis S.A.-A.).
Dworkin [7, 355, 356].
Shadmi’s further discussion, Judge Grunis, Section 15.
Ibid.
Humpty Dumpty said to Alice (in a rather scornful tone): “When I use a word… it means just what I choose it to mean—neither more nor less” [6, 269].
Barak emphasizes that “[i]n interpreting a constitution, as in interpreting every other legal text… [o]ne should not give the constitution a meaning that its express or implied language cannot sustain” [ 5, 127]. The Hebrew word Barak uses for “sustain” (in “…cannot sustain”) is
—see, for example, [ 3 , 180]; in this context this Hebrew word also means “tolerate” (namely “…cannot tolerate”). This seems to be the meaning of the quotation marks that Judge Naor adds to the word “sustain” in the following quote.
Shadmi’s further discussion, Judge Naor, Section 3.
Ibid, Judge Naor, Section 6.
The language and purpose of section 49a(b)(1) of the Land Appreciation Tax law are surveyed in the last paragraph of Section I.A—“Real estate combination transactions: payment apartments and taxation”—including footnote 14.
Shadmi’s further discussion, Judge Naor, Section 10.
For a survey of the purposive method of judicial interpretation used in Israeli courts, see [2].
References
Azuelos-Atias, S. 2010. Semantically cued unspoken assumptions in the legal text. Journal of Pragmatics 42: 728–743.
Azuelos-Atias, S. 2013. The purposive method of legal interpretation in practice. International Journal of Law, Language and Discourse 3(1): 30–54.
Barak, A. 2004. The judge in a democracy. Nevo, Keter: Haifa.
Barak, A. 2005. Purposive interpretation in law. Princeton: Princeton University Press.
Barak, A. 2006. The judge in a democracy. Princeton: Princeton University Press.
Carroll, L. 1970. Through the looking glass and what Alice found there, In The Annotated Alice. Penguin: Harmondsworth.
Dworkin, R. 1997. In praise of theory. Arizona State Law Journal 29(2): 353–376.
Edrey, Y.M. 2002. A brief introduction to the legal system and legal education in Israel and the curriculum at Haifa faculty of law. South Texas Law Review 4: 343–353.
Zemach, Y.S. 2002. The judiciary of Israel. The Institute of Judicial Training for Judges in Israel (3rd Ed).
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Azuelos-Atias, S. The Legal Notion of “Linguistic Possibility”: The Israeli Case. Int J Semiot Law 28, 251–266 (2015). https://doi.org/10.1007/s11196-014-9380-y
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DOI: https://doi.org/10.1007/s11196-014-9380-y