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.

20 G. TEDESCHI the last- mentioned distinction is of a different order than that between a reception and an infiltration ( both of which may relate either to form and concept or to solutions) 16 and that there is therefore no room for the tripartite division — reception, infiltration and inoculation — suggested by these writers. 5. The notion of a reception of law implies that law is taken in from without, but it need not come from outside the country. It may come from a legal system which was formerly in force in the receiving country ( if its tradition has been broken and it has lost its authority), and it may even come from a system which is currently in force in that country, but as a separate system from the receiving one. Thus, there were recep-tions in European countries from the Law Merchant and from the Canon Law. Nevertheless, where a nation upon whom an alien law has been imposed by a conqueror reverts to its own law after regaining its freedom, the process will not be called reception, because it will regard that law as something which never passed from its consciousness — which never lost its authority, although its application had been temporarily inter-rupted under duress. More generally, we may say that a reception — if due weight is accorded to the subjective point of view by reference to which the term is defined — only takes place where the process is recognized and accepted as such by the people concerned. The revival of Roman law in certain countries of Europe during the Middle Ages and the Renaissance is today called a reception. But did the people concerned regard it as such at the time?  Just as the humanists thought of deriving absolute truths and the essentials of human culture from the Greek and Latin authors, writes Stobbe, 17  so the jurists, who studied Roman law at Bologna and later tried to institute it in their own countries, were far from conscious of introducing an alien law (...); they did not intend to import foreign law but to apply  the law9. There was also — and perhaps above all — the influence of another idea, which sometimes appears to be a related one. The  continuation of the Empire9 from the Roman to the German emperors, according to the then current ideas, in itself gave binding force to Roman law as the law of the Holy Roman 16. In fact, the Traite itself speaks of a reception of dogmatics as distinguished from a reception of solutions: p. 58 ff. 17. Cf. Stobbe, Geschichte der deutschen Rechtsquellen, I, Braunschweig, 1860, p. 640. Chapter Home | TOC

Studies in Israel Legislative Problems (Scripta Hierosolymitana, XXII)


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