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 19 even if it is admitted that there is perhaps some foundation for Lees statement, it is clear that the notion of an  inoculation9 greatly exagge-rates it. The formulations of other writers who incline towards a similar view but do not use this metaphor are more cautious. 15 It must be added that inoculation is an operation undertaken con-sciously and for the express purpose of immunizing the patient — an awareness and a purpose which can hardly be ascribed to Bracton. Finally, one inoculates with a substance which in itself is harmful to the organism but confers upon it an immunity against further attacks on a larger scale or in less favourable circumstances. Surely, such a distin-guished Romanist as Lee was not so hostile to Roman law as to want to compare it with pox or the plague? Such an attitude could only spring from an extreme nationalism, such as that of the anti־ Romanistic Germanists of Germany. However, quite apart from all these considerations, what, if anything, really distinguishes this so- called inoculation from reception and infiltra ״ tion? It seems that Lee, in contrasting the former with the latter two, took into account the scale of the phenomenon and some of its effects; that is, the much smaller scale of the reception in England as against, say, the Romanistic reception — or infiltration — in Germany, and the alleged immunizing effect of that first English reception. But the scale of a reception or an infiltration — whether it is more or less general or confined to a particular institution or rule — does not change its nature; nor do the different consequences which may follow from it affect its essence. Arminjon, Nolde and Wolff, as was mentioned earlier, suggest a different distinction: a reception of legal techniques as distinguished from a reception of the actual provisions of the law. To this it may be said, firstly, that it is doubtful whether this is what Lee had in mind and, secondly, that the infiltration of Roman law into England in the 12th and 13th centuries does not seem to be a particularly striking example of the penetration of pure forms and concepts without the actual solutions of a foreign system ( a distinction which will be discussed at length in the course of this paper). Here one need only remark that 15. Cf. Holdsworth, op. et vol. citp. 289:  If the continuity of English Law be our boast, let us not forget that something is due to the fact that there is an element of Roman Law in Bracton, s work— an element which prevented any future or larger  reception W. Seagle,  Reception, in Encycl. of Social Sciences, N. Y., 1937, vol. XIII, p. 154: (...) England, like France, received Roman Law in homeopathic doses, which made possible its assimilation as an organic part of the native legal system. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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