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.

ON RECEPTION AND ON THE LEGISLATIVE POLICY OF ISRAEL 13 However, if foreign law which is imposed upon a people actually takes root, we must assume that it has finally met with a sufficient measure of consent on the part of ihat people, even if this consent was given reluctantly and after the event; that is, even if it was only sub-mission. This consideration gives some support to those who do not distinguish between reception and imposition, or at least do not counter-poise one against the other. 4 Moreover, even in typical cases of reception there is at first only a partial or relative consent on the part of the people. The consent is that of certain sections of the community only, and it does not become general until the received law takes root and becomes part of the consciousness of the people. It is thus natural for the difference between the two phenomena to become obscured with the passage of time. On the other hand, a reception can be no less temporary than an imposition. Turkey at one time passed from the reception of French law to the reception of Swiss and other law, and Egypt too has abandoned French law in favour of a new law which is also, on the whole, of Euro-pean extraction. By contrast, neither India nor Israel have shown any haste after gaining independence in abandoning the law imposed on them by their British rulers, nor have Tunisia or Morocco discarded French law. It is true, however, that the retention of foreign law after it has already been in force for a considerable time is not the same as its reception and that the motivations in such cases are different. It is clear that the introduction of English law into this country during the British Mandate cannot be described as a true reception. This applies as much to the law which was imported by virtue of section 46 of the Rezeption, sondern durch Eroberung, wobei dieses Wort nicht im Sinne gewaltsamer Aufdraengung des eigenen Rechtes gegenueber den Unterworfenen zu verstehen 1st, sondern weit eher als penetration pacifique. But, as against this, see the reservations of David, op. cit. p. 243. It must be added that Koschakers thesis regarding English law is somewhat weakened by his assumption ( in which there is some truth, though he has overstated it) that the decisive factor in all receptions of foreign legal systems ( as distinguished from isolated institutions) is political power or might:  Wir ziehen aus diesen Betrachtungen den Schluss, dass die Rezeption eines Rechtssystems keine Qualitaetsfrage ist; mit anderen Worten, man rezipiert ein fremdes Recht nicht, weil man es fuer das beste haelt. Vielmehr ist die Rezeptibilitaet eines fremden Rechtssystems eine Machtfrage( ...) { op. cit., p. 137 f.). But see contra F. Ayiter,  Das Rezeptionsproblem, etc. in VEuropa e il dir. rom., Studi in memoria di P. Koschaker, II, Milano, 1954, p. 131 f.; Buenger,  Die Rezeption des europ. Rechts in China, in I. Teil der Landesreferate zum III. Internat. Kongress fuer Rechtsvergleichung, London, 1950, p. 166 ff. 4. Cf. Kocourek, op. cit., p. 235. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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