The Limits of Judicial Creativity
University of Haifa - Faculty of Law; University of Oxford - Faculty of Law
October 18, 2012
Law & Government (Israel), Vol. 9, pp. 7-44, 2006
This Article outlines the limits of judicial creativity, through a critical analysis of the Supreme Court's decision in Serdyuk v. General Military Prosecutor. In that case the appellant was called up for mandatory military service after the limitation period for his conscription had expired. Chief Justice Barak opined that section 49 of the Security Service Act, as interpreted in long-standing decisions of the Court, extended the limitation period for conscription to the extent that pre-conscription proceedings had been suspended by the prospective serviceman's fault or with his implied consent. The Article raises three questions in this regard.
First, the rule that may be derived from pre-Serdyuk case law is much narrower than that applied by Chief Justice Barak. The Court interpreted section 49 in Levi as extending the limitation period to the extent that the prospective serviceman disobeys a general order that summons him to register or undergo certain examinations. Later on the Court held that the same rule applies in the case of disobedience to a personal order to the same effect. It has never extended the limitation period unless a military order had been defied, nor could it have done so.
Second, despite its rhetoric, the Serdyuk rule - which is completely detached from the words of the statute - cannot be deemed a legitimate statutory interpretation. The Article analyzes the main reasons against countertextual interpretation and demonstrates their materialization in different interpretive models. E.g., the Israeli purposive interpretation method stipulates that the meaning attributed to a statute must be based on its wording. Moreover, it is assumed that the purpose of the statute is manifested in the plain and ordinary meaning of its words. Although this assumption may be refuted in certain cases, a serious divergence from the plain and ordinary meaning of the words calls for a convincing explanation. The Article shows that in certain categories of cases the courts have deviated considerably from the plain meaning of the statute and loosened the connection between the text and its interpretation. It explains what makes those categories unique, and argues that Serdyuk does not fit within any of them.
Third, the Serdyuk holding cannot be regarded as non-interpretive judicial rulemaking based on supreme juridical principles. Using the principle that one cannot benefit from one's own wrong to create exceptions to statutory provisions entails a conscious and defensible decision to do so. No such decision was made in Serdyuk. Even if the Court had made a conscious and defensible decision to use this principle in the context of limitation of conscription powers it would not have been able to justify an all-embracing holding that applies to cases where the prospective serviceman's fault is either trivial or absent. Finally, conscription without explicit statutory authority is inconsistent with the provisions of Basic Law: Human Dignity and Liberty, and Basic Law: The Army.
Note: Downloadable document is in Hebrew.
Number of Pages in PDF File: 38
Keywords: constitutional law, statutory law, interpretation, judicial creativity, military law, conscription, military service
JEL Classification: K00, K10Accepted Paper Series
Date posted: June 13, 2006 ; Last revised: October 19, 2012
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