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Interpretation in Criminal Law

  • Mordechai Kremnitzer


In recent years a new trend has appeared in decisions of the Supreme Court concerning the interpretation of criminal prohibitions. According to this trend – which will be analysed in the course of this article – a penal statute must be interpreted in the same way as every other statute, there being no rule of restrictive interpretation particular to criminal law. The interpreter must choose that interpretative option which best realizes the objective of the legislation, even when that option is based on the irregular and secondary meaning of the words. The legislative objective is often identified by the Court as the broadest possible defence of the social interest protected by the norm. It is this trend that we wish to discuss, or rather, to criticize.



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1 F. Frankfurter, supra bibliographic note, at 213.

2 Larenz, K., Methodenlehre der Rechtswissenschaft (Berlin, 1983) 195215 ; Rahlf, J., “Die Rangfolge der klassischen juristischen Interpretationsmittel in der strafrechtswissenschaftlichen Auslegungslehre” in Juristische Dogmatik und Wissenschaftstheorie, von Savigny, E., ed., (München, 1976) 14, 16 ; Schröth, U., “Probleme und Resultat der Hermeneutik Diskussion” in Einführung in Rechtsphilosophie und Rechtstheorie der Gegenwart, Kaufmann, A., Hassener, W., eds., (Heidelberg, 1977) 188, 193 .

3 See H. Coing, supra bibliographic note, at 329-330. We fear that this is the approach adopted by Y. Levy and E. Lederman in their presentation of the judgments which deal with interpretation, in their book Principles of Criminal Responsibility (Tel-Aviv, 1981, in Hebrew) 7590 .

4 This stand was taken by Scheuerle, Isay, Kelsen, Kriele, Esser and von Savigny. See J. Rahlf, supra n. 2, at 22, 23.

5 Tedeschi, G., “Insufficiency of the Legal Norm and Loyalty of the Interpreter”, in The Israel Academy of Sciences and Humanities, Proceedings (Jerusalem, 1964, in Hebrew) vol. 1, no. 4, p. 1 .

6 Bakal v. State of Israel (1980) 34(iv) P.D. 548, at 552 opposite (b).

7 Agranat, S., “The Contribution of the Judiciary to the Legislative Endeavour” (1984) 10 Iyunei Mishpat 233, at 246249 . Thus, for example, if such a wide approach were adopted, as in regard to the interpretation of sec. 305( 1) of the Penal Law, 1977 (L.S.I. Special Volume), there would be room to take into consideration the margin heading at the side of the section instead of assuming that the wording of the provision is clear – even though there is no indication in the provision as to the required mental element, and the wording does not clarify what is the completed offence from which the attempt to cause death – the subject of the section – is derived. Were the Court to do so, and hold that the reference is to attempted murder, it would also hold (as it did in regard to sec. 306) that the mental element required for attempted premeditated murder is premeditation – and spontaneous intention is not enough. This outcome is preferable to that arrived at by the Court, whereby ordinary intention is sufficient according to sec. 305( 1) (Der'i v. State of Israel (1960) 14 P.D. 234). The Court's conclusion is rather strange; it means that while normally (in offences requiring mens rea) a greater mental element is required for attempt (aim to complete the offence) than for the completed offence, a lesser mental element is required in attempted premeditated murder than in the completed offence – even though attempt is a partial criminal form and deficient in terms of the factual element. Furthermore, in view of the interpretation of the case-law it follows that the Penal Law contains two offences (secs. 305( 1) and 32(2)) identical in terms of their elements but carrying different penalties (twenty years and fourteen years) and that when the legislature established in sec. 32 the provision “unless some other punishment is provided” it mislead regarding sec. 32(2). For a lengthy criticism of the Der'i case see Kremnitzer, M., “Attempted Murder in Our Law” 1978(8) Mishpatim 487 .

8 If historical interpretation were to be adopted in Israel, there would be room to hold that for the offence of manslaughter no mens rea is required. This, in view of the authentic meaning of the phrase “intention” as mens rea. There would be substance to the claim that the phrase “circumstances” in sec. 33(c) of the Penal Law relates to irrelevant circumstances, such as the existence of the object at the place of the carrying out of the crime, and not to relevant circumstances which are included in the definition of the offence. On the other hand, it would be possible to attribute to the expressions “rash” and “careless” in the offence of causing death by negligence (sec. 304 of the Penal Law) significance in the behavioural objective plane, and not in the mental plane.

9 See infra, text following n. 50.

10 The importance of a fair warning is greater in regard to a prohibition that is not supported by the social-moral consciousness. Regarding this distinction see Palm, C.W., “RICO and the Liberal Construction Clause” (19801981) 66 Cornell L.R. 167, at 179 .

11 K. Larenz, supra n. 2, at 195.

12 U. Schröth, supra n. 2, at 189-191.

13 Feller, S.Z., Elements of Criminal Law (Jerusalem, 1984, in Hebrew) vol. 1, pp. 412 ; Levy and Lederman, supra n. 3, at 72-74; Ross v. State of Israel (1973) 27(ii) P.D. 365, at 372; “Eshed” v. Attorney-General (1954) 8 P.D. 785, at 818.

14 Attorney General v. Ohana (1954) 8 P.D. 92, at 95.

14a 4 L.S.I. 154.

15 Barenblatt v. Attorney-General (1964) 18(ii) P.D. 70.

16 Even if it is believed that the condition of presence in sec. 28 of the Penal Law is unwarranted, it is not legitimate to create alongside of the doctrine in sec. 28 (mutual responsibility of conspirators) a further doctrine that has absolutely no basis in Israeli legislation, one that allows the imposition of criminal liability on a conspirator because of offences committed by his fellow conspirators in order to further the purpose of the conspiracy, even when that conspirator was not present at the time of their commission. Feller, S.Z., “Criminal Responsibility without an Act – On what Grounds?” (19741975) 29 HaPraklit 19 ; Kremnitzer, M., “On Criminal Conspiracy and the Relationship between Conspiracy and Incitement” (1984) 14 Mishpatim 231, at 252253 . Generally, it is accepted that the subject of sec. 28 of the Penal Law is to be defined as derivative liability of accomplices. In fact, the section discusses the derivative liability of accomplices who are also conspirators. It cannot be assumed that sec. 28 was legislated with the assumption that in addition to it there exists in our law a doctrine of mutual responsibility of conspirators, as this doctrine allows the imposition of liability when only some of the conditions listed in sec. 28 exist. Sec. 28 constitutes, therefore, the specific Israeli arrangement of the problem of mutual responsibility of conspirators.

17 Azulai v. State of Israel (1983) 37(ii) P.D. 569, at 587.

18 Kremnitzer, M., “On Freedom of the Press and the Offence of Sub Judice Publication (Sec. 41 of the Courts Law)” in Criminal Law, Criminology and Police Science, Orion, G., ed., (Tel-Aviv, 1986, in Hebrew) vol. 1, pp. 165217 . In the majority of cases, and certainly in a typical case, the publisher is aware of the fact that the proceeding is pending. Therefore the normal mental element (i.e., mens rea) could suffice in regard to this component of the offence, according to a utilitarian analysis as well.

19 McBoyle v. U.S. 283 U.S. 25, 75 L.Ed. 816, 51 S.Ct. 340(1931). In the proposal of the Royal Commission for the Codification of the Criminal Law, sec. 3( 1) reads as follows: “The provisions of this Act shall be interpreted and applied according to the ordinary meaning of the words used read in the context of the Act, except insofar as a definition or explanation of any word or phrase for the purposes of the Act or any provision of it requires a different meaning”. The Law Commission, Law Commission No. 143 – Codification of the Criminal Law (London, 1985) 172 . See also LaFave, W.R., Scott, A.W., Criminal Law (St. Paul, 1972) 6972 ; Burrows, J.F., “Statutory Interpretation in New Zealand” (1984) 11 N.Z.U.L.R. 1, at 5 ; C.W. Palm, supra n. 10, at 170, 171.

20 Supra n. 14.

21 Agranat, supra n. 7, at 241.

22 Barak, A., “Interpretation and Adjudication: Elements of an Israeli Theory of Statutory Interpretation” (1984) 10 Iyunei Mishpat 467, at 483 .

23 Mizrachi v. State of Israel (1981) 35(iv) P.D. 421.

24 Electric Company v. Farscht (1985) 39(iii) P.D. 1, at 6.

25 Sussmann, Y., “Some Interpretative Guidelines”, in Festschrift in Honour of Pinchas Rosen (Jerusalem, 1962, in Hebrew) 147, at 151, 152 .

26 Smith, J.C., Hogan, B., Criminal Law (London, 5th ed., 1983) 4751 .

27 Does “shop” include “workshop” as well? Does “motorized vehicle” include “sailing vessels” as well? Does “enter” include “remain”? Does “shop” in a criminal prohibition also include a petrol station? Does “writing” in a criminal offence also mean a tape? Does the expression “an offence committed by a vehicle” cover the refusal by a driver of a vehicle to identify himself after an accident?

28 W.R. LaFave, A.W. Scott, supra n. 19, at 72-74; Sutherland Statutory Construction, Sands, C.D., ed., (Chicago, 3rd ed., 1974) vol. 3, sec. 59.03; Sweet v. Parsley (1969) 1 All E.R. 347, at 349, 350.

29 For other possible meanings of the rule of restrictive interpretation, ree Engisch, K., Einführung in das juristische Denken (Stuttgart, 7th ed., 1977) 100, 101 .

30 Hall, J., General Principles of Criminal Law (Indianapolis, 2nd ed., 1961) 46, 47 .

31 W.R. LaFave, A.W. Scott, supra n. 19, at 73; Hall, J., “Strict or Liberal Construction of Criminal Statutes” (1935) 48 Harv. L.R. 748, at 756 .

32 Bar Shalom v. State of Israel (1969) 23(ii) P.D. 85; Bakal v. State of Israel, supra n. 6.

33 Supra n. 23.

34 David v. State of Israel (1983) 37(i) P.D. 626, at 645.

35 Manzur v. State of Israel (1984) 38(iv) P.D. 94; Electric Comp. v. Farscht, supra n. 24.

36 Weintraub v. State of Israel (1982) 36(iv) P.D. 376.

37 See, for example, the discussion as to the interest protected in the offence of bribery, in Kishales v. State of Israel (1983) 37(ii) P.D. 617, at 624, according to which the purpose of the prohibition is the protection of the honesty of public servants and the public administration from corruption. The same applies to the perception of the interest protected by the offence of deceit, whereby the purpose of the prohibition is to protect the public against acts of deceit, rather than the protection of property: Danino v. State of Israel (1977) 31(iii) P.D. 645, at 650.

38 Sec. 71 (a) states: “A person shall not publish anything concerning a matter pending in any court if the publication is calculated to influence the course or outcome of the trial”. S.H. (1984) no. 1123, p. 195. Sec. 71 was originally sec. 41 in the Courts Law, 1957 (11 L.S.I. 157).

39 Supra n. 23; Feller, S.Z.Escape from Lawful Custody, by Omission?” (1982) 8 Iyunei Mishpat 630 ; Kremnitzer, M., “Escape from Lawful Custody, by Omission? – A Further Note” (1984) 10 Iyunei Mishpat 195 ; Suissa v. State of Israel (1983) 37(i) P.D. 477; State of Israel v. Suissa (1984) 38(iv) P.D. 701.

40 Secs. 411-412 of the Penal Law apply to the receiver only. Therefore, if the receiver was not aware at the time of receipt of the source of the chattel, it is impossible to attribute one of these offences to him. See S.Z. Feller, supra n. 16, at 136; and Kremnitzer, M. “Principles of Structure and Organization of the Specific Offences” (Doctoral Thesis, Jerusalem, 1980) 50, 51 .

41 Supra n. 17.

42 (1985) 39(iii) P.D. 205. See D. Kretzmer, “Intent in Criminal Libel”, infra this issue, at 591.

43 Thus, for example, it was possible to arrive at a different conclusion in regard to the interpretation of sec. 71 of the Courts Law. See supra n. 18. As to the offence of libel, it was possible to conclude that foreseeing the harm as close to certain was also sufficient. This, in view of equivalence (morally, from the perspective of the choice of the perpetrator) of this mental condition to a state of desire to harm. Such a conclusion is particularly called for if we see the typical case of libel as including the characterization of false publication, for then it is entirely unclear why seeking to harm is required in addition to the publisher's awareness as to the publication being untrue and its harmful consequences. A different possible approach is that the Knowledge or Foreseeability Rule (from the case-law) is unacceptable altogether, since it conflicts with the simple meaning of intention. The discussion of the basic principles at pp. 218-219 in Yefet v. Borochov is not convincing. The nature of the “public peace” that the court refers to is not clear, nor why it is harmed only when the publisher acts with the purpose or motive of causing injury.

44 Supra n. 13, at 18. These are to be preferred over Prof. Feller's comments at p. 176 of his book: “Unclarity of the language of the norm … may result not only from the norm's vague, meaningless or ambiguous phrasing, but also from its irreconciliability with the purpose of the statute even when the language itself is clear. The meaning of the norm must be derived from its clear and simple language – from the ratio verborum – only when it doesn't contradict the purpose of the statute”.

45 For a similar observation see Waluchow, W.J., “Hart, Legal Rules and Palm Tree Justice” (1985) 4 Law and Philosophy 41, at 66 .

46 Moore, M.S., “A Natural Law Theory of Interpretation” (1985) 58 S. Cal. L.R. 277, at 320, 321 .

47 F. Frankfurter, supra bibliographical note, at 227, 228.

48 It isn't necessarily clear that a distortion of the wording in order to achieve a logical interpretative result will of necessity harm the image of the law in the eyes of the public.

49 Eshed” supra n. 13.

50 Tzur v. Attorney-General (1964) 18(i) P.D. 85.

51 And this as opposed to what was held in Sahar v. Attorney-General (1961) 15 P.D. 561, at 578, 579; Dakusian v. State of Israel (1977) 31(i) P.D. 294.

52 M. Kremnitzer, supra n. 40, at 223, and see also Ben Bassat v. State of Israel (1980) 34(i) P.D. 215, and compare what is said at p. 221 with that at p. 222.

53 M. Kremnitzer, supra n. 40, at 243-245. See the comments of Justice D. Levin in Fleischmann v. State of Israel (1985) 39(i) P.D. 449, at 457.

54 See Loos, F., “Zum ‘Rechtsgut’ der Bestechungsdelikte”, in Festschrift für H. Welzel (Berlin, 1974) 879 . In this spirit see Sharon v. State of Israel (1984) 38(ii) P.D. 757, at 771.

55 And this as opposed to what was held in Kobilio v. State of Israel (1980) 34(ii) P.D. 281, at 297-299. It is certainly possible to prohibit also the receiving of such a benefit, although it is advisable to distinguish between this and the prohibition of bribery.

56 Kobilio, ibid., at 299-305.

57 G. Tedeschi, supra n. 5, at 16.

58 Cohn, H., “Faithful Interpretation – Three Dimensions” (1976) 7 Mishpatim 5, at 8 .

59 Radbruch, G., “Modes d'interprétation”, in Recueil d'études sur les sources du droit, en l'honneur de F. Gény (Paris, 1934) vol. II, pp. 217218 .

60 Thus, for example, T.S. Eliot said that “if there is significance to the word inspiration, then it has to be that the speaker or the writer expressed something that he himself didn't fully understand”. A Gide said: “More than I explain to others my stories, I anticipate that others will explain them to me… we know what we wanted to say, but we don't know if we said it. We always say more than that. And what interests me especially is that something which I put into writing, without being aware of it”. Quoted from K. Engisch, supra n. 29, at 86.

61 It is also related to the principle of the separation of powers and to the sense of justice.

62 Dan Cohen, M., “Decision Rules and Conduct Rules: An Acoustic Separation in Criminal Law” (19831984) 97 Harv. L.R. 625677 .

63 Fletcher, G., Rethinking Criminal Law (Boston, 1978) 810813 .

64 In German law, the case-law developed the defence of necessity as a justification. Also the doctrine known as soziale Adaquanz was developed, whose purpose is to exclude from the prohibitions that conduct which falls within its usual linguistic meaning, but which does not deviate from acceptable behaviour in society. There are those in German law who claim that also in offences of abstract danger – such as not stopping at a red light – the total absence of danger in a concrete situation requires exemption from punishment. See also the proposals by Prof. Enker for dealing with the phrase “whom he was bound to protect” in sec. 22 of the Penal Law, and the opinion of Elon J. in Afnajar v. State of Israel (1979) 33(iii) P.D. 141, at 154. Also, the Supreme Court's approaching recognition of de minimis as a defence that exempts from criminal liability is in the same spirit: State of Israel v. Avni (1979) 33(iii) P.D. 821, at 832.

65 H.H. (1983) no. 1612, p. 111. Sec. 20 in the original Bill, H.H. (1973) no. 1085, p. 448.

66 Sec. 50 of the Criminal Code Bill – Preliminary and General Parts” (1984) 14 Mishpatim 127, at 146 . See also Friedmann, D., “Judicial Discretion Regarding the Decision to Prosecute” (1983) 35 HaPraklit 155 .

67 See S.Z. Feller, supra n. 13, at 58. A further reason underlying the rule of de minimis is that the normative regulation of these cases entails the enumeration of endless possibilities, primarily because the minuteness of the injury to the social order is generally a consequence of the accumulation of circumstances.

68 See secs. 4-6 of the “Criminal Code Bill – Preliminary and General Parts”, supra n. 66, at 135-136.

* Senior Lecturer, Faculty of Law, The Hebrew University of Jerusalem.

I would like to thank Prof. S.Z. Feller, Dr. M. Gur-Arye and Mr. Eyal Rozovski for their helpful comments.

Sources of inspiration included: F. Frankfurter, “Some Reflections on the Reading of Statutes” in Landmarks of Law, D. Henson, ed., (Boston, 1960) 210; H. Coing, Grundzüge der Rechtsphilosophie (Berlin, 4th ed., 1985) 319-331; P.A. Coté, Interprétation des Lois (Cowansville, 1982); J.C. Cueto-Rua, Judicial Methods of Interpretation of the Law (1981); G. Schwalm, “Der objektivierte Wille des Gesetzgebere”, in Festschrift für E. Heinitz (Berlin, 1972) 47-64; R. Cross, Statutory Interpretation (London, 1976); G. Maccallum, “Legislative Intent”, in Essays in Legal Philosophy, R.S. Summers, ed., (Oxford, 1968) 237-273; A. Barak, “The Intention of the Legislature: Reality or Fiction?” (1985) 36 HaPraklit 165-189; A. Barak, “On the Judge as Interpreter” (1982) 12 Mishpatim 248-256.

Interpretation in Criminal Law

  • Mordechai Kremnitzer


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