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The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period*

Published online by Cambridge University Press:  12 February 2016

Daniel Friedmann
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Extract

This series of articles is intended to deal with one aspect of the sources of Israel law, namely the influence of foreign legal systems and principles derived therefrom on Israel law and on the attempt in recent years to independent creation of local law.

Foreign law constitutes on occasion an actual legal source for the law of Israel. This occurs when a local enactment refers to foreign law and makes it applicable in certain situations. In such case the foreign law which we are to apply constitutes an obligatory legal norm in Israel and is, in fact, part of the Israel legal system. In other cases foreign law influences the process of creation of local law but does not constitute a formal source of law in the Israel system. This happens, for example, when Israel case law relies for authority upon some rule established in an American decision (which is, of course, not binding in Israel) or when the Israel legislator is influenced by a principle of law derived from another legal system. We might say there that the foreign law is an historical source for the Israel rule.

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Articles
Information
Israel Law Review , Volume 10 , Issue 2 , April 1975 , pp. 192 - 206
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1975

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References

1 For the distinction between reference to a foreign legal system for application of legal norms therein established, and between incorporation of a rule taken from a foreign source but drafted anew by the local legislator and enacted as local law, see Englard, , “The Place of Religious Law in the Israel Legal System” (1970) 2 Mishpatim 268, 510, 511 ff.Google Scholar

2 The term “sources of law” has several connotations. Roscoe Pound noted its use in five different ways: See Pound, , Jurisprudence, (1959) vol. 3. p. 379et seq.Google Scholar In the above context the term “historical source” is used as defined by Salmond, who distinguishes legal and historical sources: see Salmond, , Jurisprudence (12th ed. 1966) 109et seq.Google Scholar

3 (1963) (III) 18 P.D. 477.

4 Re Worrel Ex Parte Cossens (1820) Buck 531, 540 L.C.

5 (1963) (III) 18 P.D. at p. 497. But, as pointed out by Halevi J. the Jewish law principle and that of English law are not identical. The Jewish law rule is that “a person cannot ascribe evil unto himself”, that is, he is unable to incriminate himself. As opposed to this, according to Common law, a person cannot be compelled to incriminate himself. For the principle in Jewish law, see Kirschenbaum, , Self-Incrimination in Jewish Law (New York, 1970).Google Scholar Clearly the rule as absorbed from Common law and not the Jewish law rule is that which is in force in Israel today.

6 (1958) 12 P.D. 1493, 1506–07.

7 R. v. Chancellor of Univ. of Cambridge, (1723) 93 E.R. 698, 704: “[E]ven God himself did not pass sentence upon Adam, before he was called to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst not eat?” See Sussmann, , “Das Zivilrecht Israels” (1967) Juristenzeitung 205, 206Google Scholar, n. 10, and Wade, , Administrative Law (3rd ed., 1971) 186–7.Google Scholar

8 For a survey of the evolution of the subject, see Malchi, , The History of Law in Israel (2nd ed., 1953, in Hebrew) 77–8.Google Scholar

9 Art. 46 will be discussed at length in a later article of this series.

10 In the wake of the U.N. resolution of November 29, 1947, which resolved an end to the British Mandate in Palestine no later that August 1, 1948. On this subject and on the Declaration of Independence see Rubinstein, , Constitutional Law of Israel (2nd ed., 1974, in Hebrew) 15.Google Scholar

11 I L.S.I. 9.

12 See Rubinstein, op. cit. supra at p. 41.

13 Leon v. Gubernik (1948) 1 P.D. 58.

14 Levi v. Attorney General, (1954) 8 P.D. 338, 340. On this section see Mizrachi, , “Sec. 42 of the Interpretation Ordinance: State Privilege,” (1974) 5 Mishpatim 135, 388Google Scholar; Potchebutsky, , “Is the State Subject to the Rule of Law?” (1974) 9 Is. L.R. 369.Google Scholar

15 (1970) (II) 24 P.D. 141. For a discussion of this decision see Rubinstein, op. cit. at pp. 45–46; Maoz, , “Between the Allenby Bridge and the Western Wall” (1973) 3 Iyunei Mishpat 200Google Scholar; Klein, , “The Temple Mount Case” (1971) 6 Is. L.R. 257.Google Scholar

16 (1970) (II) 24 P.D. at p. 209.

17 See Rubinstein, supra n. 10, at p. 49.

18 For illustrations, see Ibid. at pp. 47, et seq.

19 This point is discussed further in a later article.

20 Frumkin, , “Introduction to the Mejelle”, in The Mejelle (3rd ed., translated into Hebrew) 30.Google Scholar See also Ginossar, , “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380, 381–2.Google Scholar

21 In fact the opinion has been expressed that the term Civil Code as applied to the Mejelle is inappropriate, for it is of a character different from that of the known European codifications. See Malchi, supra n.8, at p. 97, and Meron, , “The Mejelle Tested by its Application” (1970) 5 Is.L.R. 203.CrossRefGoogle Scholar

22 Sussmann, supra n. 7, at p. 206.

23 Frumkin, “Report of the Committee on the Mejelle” in op. cit. supra n. 20 at pp. 2–3.

24 Palestine Mercantile Bank Ltd. v. Fryman & Belkind (1938) 5 P.L.R. 159.

25 This matter will be further discussed in the next article of this series.

26 Mejelle, art. 906. See also Friedmann, , The Law of Unjust Enrichment (1970, in Hebrew) 253–254.Google Scholar

27 Goff, & Jones, , The Law of Restitution (1966) 95.Google Scholar

28 The chapter on hire of animals, incidentally, is more detailed than that dealing with hire of man. The former contains 24 sections of law; the latter only 20 sections.

29 The Mejelle also contains provisions which, to the modern jurist, are quite amusing such as that of art. 1794 which states that “a person may not serve as a judge if he is a minor, an idiot, blind or deaf so that he cannot hear the loud voices of the parties to the litigation”, or that of art. 1798 which prohibits the judge from signalling during the suit to one of the litigants “by movement of his hand, by winking his eye or turning of his head…” See also Malchi, supra n. 8, at p. 31.

30 See Sussmann, supra n. 7, at p. 207. Cf. also Meron, supra n. 21 at p. 211.

31 Mejelle, art. 205.

32 Id., art. 209.

33 Malchi, supra n. 8, at p. 25. And see Municipality of Haifa v. Khoury (1920–33) 1 P.L.R. 724.

34 Tedeschi, , Studies in Israel Private Law (1959, in Hebrew) 3.Google Scholar

35 Frumkin, supra n. 20, at p. 27.

36 Tedeschi, supra n. 34, at p. 3, brings an example in which a section of the Ottoman Maritime Code was copied from the Commercial Law Statute Book of Holland of 1838.

37 See, e.g., New Zealand Ins. Co. v. Yuval (Salzman) (1953) 7 P.D. 518, 528 ff; Preisler v. Weiss (1951) 5 P.D. 878, 890 ff.

38 Sussmann, supra n. 7 at p. 206. This law has in the meantime been repealed by the Israel Succession Law, 1965 (19 L.S.I. 58).

39 Sussmann, ibid.

40 For the “discovery” of this Law see text infra at nn. 58–59.

41 These three statutes are based on parallel French legislation. But, as noted, the influence of other codes is sometimes also reflected. See supra n. 36 and text accompanying n. 34.

42 The far-reaching amendment of art. 64 of the Ottoman Code of Civil Procedure was enacted in 1914, that is, after the revolution of the Young Turks. But even they, it seems, still preferred to introduce the substantive amendment under cover of a procedural law.

43 Mejelle,, art. 205, quoted text supra at n. 31.

44 The decision is cited in Hooper, , The Civil Law of Palestine and Trans-Jordan (1936) vol. 2, p. 127.Google Scholar

45 See, e.g., Palestine Cotton Manufacturing Co. v. Ushpiz (1963) (IV) 17 P.D. 2163, 2167.

46 This question could not be solved during Ottoman rule in Palestine because at the time of its enactment Ottoman rule was nearing its end.

47 For a discussion of this area see Hooper, supra n. 44, at p. 116. And see infra n. 49.

48 Hooper cites a decision of the Court of Cassation in Constantinople which recognized the validity of a lottery, with government authorization, for the benefit of schools, despite the fact that the Mejelle does not recognize such lotteries. For provisions of Ottoman law regarding speculative agreements, see Hooper, id., at p. 126 and also at p. 117. It should be noted that contracts of risk are apparently prohibited by Moslem law. See Zeltner, , Contracts (1962, in Hebrew) vol. 1, p. 505.Google Scholar

49 Hooper, supra n. 44, at p. 116. Compare also Giladi v. Orion (1971) (I) 25 P.D. 648, 657. Nonetheless there remained in the Mejelle quite a few provisions which continued to bind and which could not be contracted out. Until enactment of the Capacity and Guardianship Law, 1962 (16 L.S.I. 106) this was the case for provisions regarding capacity of the parties, as indicated by art. 64 itself. This was the case, too, for other instances in which art. 64 could not authorize a contract contravening given provisions of the Mejelle. For example, the Mejelle provides that a gift is completed upon receipt (art. 837) “A gift intended to be delivered after a period of time is incomplete” (art. 864) and “Until receipt the donor, if he wishes, may retract the gift” (art. 862). Under the amended art. 64, might the parties enter an agreement to give a future gift? In Ilan v. Estate Tax Administrator (1967) (II) 21 P.D. 443, two Justices of the Supreme Court were unwilling to give general recognition, on the basis of art. 64, to such an obligation to make a gift in the future. Under these circumstances the Mejelle requirement of delivery remained in effect. The subject is now regulated by the Gift Law, 1968 (22 L.S.I. 113).

50 See the decisions of Landau J. in Fuchs v. Eylon and Etzioni (1957) (I) 11 P.D. 358, 361, and Zim v. Meziar (1963) 17 P.D. 1319, 1334.

51 Sussmann, supra n. 7 at p. 36.

52 See Frumkin, supra n. 20, at pp. 27–28 and Malchi, supra n. 8, at p. 52.

53 Frumkin completed his course of study a short time before the outbreak of World War I. The story of his life is described in Frumkin, , The Life of a Jerusalem Judge (Tel Aviv, 1955, in Hebrew).Google Scholar

54 Gurion, Ben, Memoirs (1971, in Hebrew) vol. 1, p. 52.Google Scholar The late former Prime Minister was apparently very proud of his scholastic achievements in Turkey. He relates: “The minimum grade awarded a candidate (who was being examined) was 5, the maximum grade was 10. On the first exam (international law) I received a 9½, on the second (civil law) I received the maximum 10 … The third exam was in criminal law. Normally, results are not made known the same day, but this time the professor told me with enthusiasm after the problems he had posed to me: ‘I have already awarded you a grade of 10’, and turning to the second student who had entered the exam with me, he said: ‘I am delighted and satisfied when I have the opportunity to give such a student a 10’. Twelve students had been examined before me and all emerged from the exam angry and cursing that professor for being so exacting and pedantic”.

55 Bentwich, , “The Legal Administration of Palestine under the British Military Occupation 1920–1921” (1921) 1 British Yearbook of International Law 139, 140.Google Scholar

56 Malchi, supra n. 8, at pp. 70–71.

57 See Bochan v. Rosenzweig (F.H.) (1968) (I) 22 P.D. 569, in which Sussmann J. discusses the doubts regarding the date of enactment, which some claim to be as early as 1850.

58 Id. And see Sussmann, supra n. 7, at p. 206. But see the version cited in Sassoon, “The Israeli Legal System” (1968–69) 16 Am. J. Comp. L. 405, 406, regarding the circumstances surrounding discovery of this statute.

59 Brozkovsky v. Kovel (1944) S.C.D. 555.

60 Kovel v. Brozkovsky (1945) 2 A.L.R. 597.

61 In 1940 the Privy Council expressed the desire that a reliable translation of Ottoman statutes be prepared because “the many differences between the various translations in use are likely to add to the difficulty of clarifying the law in effect in Palestine”. See Awqaf v. Government of Palestine (1940) 7 P.L.R. 105, and the opinion of Witkon J. in Dayan v. Abutbul (1955) 9 P.D. 1047, 1049. The translation, however, has not been prepared to this day.

62 Malchi, supra n. 8, at p. 72.

63 “The trouble with Ottoman statutes is that they are often unclear even in their original language, and when we must construe them we do so on the basis of translations which are absolutely not in agreement”. Per Witkon J. in Dayan v. Abutbul, supra n. 61, at pp. 1048–49.

64 Shilo, , “A Change in View in the Doctrine of Consideration” (1960) 16 HaPraklit 217, 222.Google Scholar

65 Supra n. 61.

66 A recent article suggests, however, that this new translation should not have been accepted and that the costruction adopted in Dayan v. Abutbul is in consistent with the wording of art. 80, when correctlytranslated. Meron, “The Requirement of Documentary Evidence, in Partnership, Tax Farming and Loan”(1974) 29 HaPraklit 275.

The second part of art. 80, which invalidates oral testimony against a written document, also served as fertile ground for litigation. In Blumenfeld v. Imperial Chem. Industries (1937) 4 P.L.R. 228, the Mandatory Supreme Court examined no fewer than four English translations of the section and an additional one into French. The Court finally gave the section an interpretation based on English law. However, “[i]t is commonly conceded to-day that the rule of that case was rendered in error” (per Sussmann, J. in Kuri v. Kuri (1958) 13 P.D. 402, 407).Google Scholar

67 See Ginossar, , “Israel Law: Components and Trends” (1966) 1 Is.L.R. 380, 383, 389.Google Scholar But Mandatory egislation brought an important innovation, by granting the Supreme Court, sitting as a High Court of Justice, jurisdiction to issue orders analogous to the British prerogative writs. This has a far reaching effect on the evelopment of constitutional and administrative law in Israel. It should also be noted that there are no separate commercial courts in Israel and jurisdiction in these matters is generally vested in the ordinary courts. In this respect Mandatory and Israeli legislation did not follow the Ottoman model, which was influenced by the French legal system. See Ginossar, , “Particularismeet Particularités du Droit Commercial Israelien” in Inchieste di Diritto Comparato (The Unity of the Law of Obligations) (Padova, 1974) vol. 3, pp. 113–124.Google Scholar Jurisdiction and power of the courts is now regulated by the Courts Law, 1957.

68 Ginossar, , “Autonomy of Corrective Law” (1974) 9 Is.L.R. 24, 31.Google Scholar

69 Rubinstein, supra n. 10, at p. 109. However, as a result of Israeli legislation, certain aspects of the law of personal status, notably some economic aspects of family law, are now regulated by secular legislation. This will be discussed in a later article.