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 17 In 1896, some decades before Lee wrote, this very metaphor was used by Heinrich Brunner. Brunner seems to have been so pleased with it that in a much later publication, in 1909, he referred to his own work and quoted verbatim the passage in which it appeared. 11 So much for its paternity. The more important question is whether it is an apt or helpful metaphor. An immunizing inoculation, while causing a temporary disturbance in the body, does not produce any permanent changes, apart from making the body immune to a certain illness. To justify the comparison, therefore, the elements of Roman law introduced by Bracton in the 12th and 13th centuries should eventually have left English law as it was before — apart from being immunized against further receptions. This was not so. Those elements may indeed have been neglected or forgotten in the 14th and 15th centuries, but they made their appearance again later. 12 For the metaphor to be acceptable this imaginary inoculation should have had the effect of immunizing the body of English law against later receptions of Roman law. This was certainly not so, but dissertation on the various ways and times of such further penetrations would be out of place here. The comparison might be well founded if one could argue that the first penetration of Roman law aroused such a hostile reaction in English lawyers as to make all further receptions more difficult. If the idea was simply that that early reception reduced the need for further receptions of Roman law, some metaphor other than that of an 11. Cf. Heinrich Brunner, Geschichte der englischen Rechtsquellen im Grundriss, Leipzig, 1909, p. 48:  Um die Wende des 15. und 16. Jahrhunderts, also um die Zeit, da in Deutschland die Rezeption des fremden Rechts erfolgte, begann das roemische Recht auch in England vernehmlich auf Pforten der englischen Gerichts-hoefe zu pochen. Namentlich im zweiten Viertel des 16. Jahrhunderts war die Conti-nuitaet der englischen Rechtsentwicklung bedenklich bedroht. Dass es gelang, das fremde Recht auf die Dauer abzuwehren, erklaert sich aus dem Zusammenwirken verschiedener Ursachen. Das englische Recht, das damals bereits einen verhaeltnis-maessig hohen Grad technischer Ausbildung erlangt hatte, fand einen Halt an den einheimschen Rechtsschulen ( Maitland, English Law and the Renaissance, 1901), in denen es traditionell gelehrt wurde. Die Aufnahme roemischer Rechtsgedanken, wie sie namentlich im Zeitalter Bractons erfolgt war, hatte in England  nach Art einer prophylaktischen Impfund gewirkt und das mit ihnen gesaettigte nationale Recht widerstandsfaehig gemacht gegen zerstoerende Infektionen ( H. Brunner, Der Arteil des deutschen Rechts an der Entwicklung der Universitaeten, 1896, s. 15). יי 12. Cf. Holdsworth, A History of English Law, II, 3rd ed., London, 1923, p. 287 ff. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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