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 15 imposition. It must also take place consciously: there must be an aware-ness of certain things. If a legal rule is adopted in ignorance of the fact that it already exists or existed in some other country we have a coinci-dental or parallel development but certainly not a reception. And if the fact is known, but for some reason the rule in question is not regarded as a rule peculiar to one system or another ( although it is in fact no more than that) but is regarded rather as a rule which every legal system demands, and if it is regarded simply as  the law, then, too, there is no true reception but merely an infiltration. There is therefore an  infiltration9 where the legislator and the legal profession ( particularly the judges) have recourse to the institutions and concepts of a particular foreign system without appreciating the foreign-ness of these institutions and concepts in relation to their own system. Thus, for instance, it is well known that the lawyers of the Middle Ages and of the Renaissance treated the concepts of Roman Law as if they were simply concepts of  law5; and consequently as if there could be no possible conflicts between their own national laws and that great legal system which they regarded as the highest and purest expression of law — as  the law. Something similar happened in our own times to the lawyers of this country who were brought up on English law: they identified  the principles of law with  the principles of English law. By itself this would probably not have brought about that thorough  Anglicization of the law of this country which has actually taken place. The much greater feeling for history of our age should have militated against confusions of this kind, while the familiarity with other legal systems should have impressed upon the mind the relativity of legal concepts to time and place. There was an additional factor, and we shall come to it presently; but the influence of the one now under consideration was by no means negligible. Numerous instances can be cited in which judges and other men of law — and even the Israel legislature6 — seem to have thought, in all innocence, that the English version of certain concepts of law was the only possible version, and that the form in which these concepts were cast in English law was, as it were, their pure form. Infiltrations of this kind are not unknown to other legal systems, in-eluding that of England itself ( in its passive role as the recipient of foreign concepts and ideas). 7 6. See below, § 19. 7. See below, § 10. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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