Studies in Israel Legislative Problems...

An impressive collection of thoughts on major legal problems facing Israel, a country where the law is at a transitional stage and in the process of continous growth.

12 G. TEDESCHI In much the same way every literary or scientific work contains elements which are derived from something read by its author or heard from others. It is only when central and important parts of a work have this origin, while lacking any clear imprint of the authors own creative activity, that the work will not be considered original work but plagiarism. The borrowings and appropriations of legislators and judges cannot be called plagiarisms — at least not in the sense in which this implies a legal wrong. But they will not even be regarded as a reception unless they are exceptionally striking, either because of their scope ( as where a whole statute or code is taken over) or because the imported provisions are peculiar to a particular system and have no parallels in other systems. 2. In the law of the State of Israel the foreign elements predominate, and their foreign origin is obvious and unmistakable. This is the case to such an extent that in most spheres it is difficult to point to any significant contributions of our own. But if we are to be precise we cannot speak of a reception every time we are faced with provisions of foreign deriva-tion. To characterize the importation of law as a reception it is not enough to show that the provisions in question were imported from a given foreign system; it is also necessary to show how they were imported. There is no reception where the law is not received from within a society by its people or legislator but is imposed from without. In dwelling upon this requirement in the definition of a true reception some writers refuse to regard an importation of law as a reception whenever it is induced by outside pressure. Thus, for instance, if, in the days of the British rule in India, an Indian prince on the  advice of the British resident adopted a criminal code modelled on English law, there was no true reception but a cross between an imposition and a reception which has been called an  imposed reception. 2 There are some who even go so far as to assert that English law, as unenacted law or Juristenrecht, is incapable of reception and has in fact never been received anywhere but has, as it were, conquered its territories. 3 2. Cf. M. Rheinstein,  4Types of Reception,, י in VI ( 1956) Annales, cit., p. 33 f. 3. Cf. A. Kocourek, 4 Factors in the Reception of Law, in Studi in memoria di A. Albert oni, III, Padova, 1938 ( p. 251:  The Anglican system (...) is beyond the possibility of foreign assimilation or reception); P. Koschaker, Europa und das roemische Recht, 2 ed., Muenchen und Berlin, 1953, p. 161 f:  Man rezipiert Gesetzbuecher, aber nicht Rechte als solche, insbesondere kein Juristenrecht (...). Nichtsdestoweniger hat sich das englische Recht ueber weite Gebiete ausgedehnt, allerdings nicht durch Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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