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Published online by Cambridge University Press: 12 February 2016
This question, evoked for the first time over thirty years ago and apparently resolved some twenty years ago, is being presently hotly debated as a result of the Bill Repealing Ottoman Laws, which is intended to abrogate, inter alia, the remains of the Mejelle, the Ottoman Civil “Code”, still in force in Israel. Throughout the Courts' examination of the question there was never any doubt that the answer is to be found in the Mejelle. For this reason it is now feared that, with the latter's disappearance, no statutory authority will be left in Israel law recognizing custom as a source of law. Admittedly, in the absence of any provision in the Ottoman law still prevailing in this country, article 46 of the Palestine Order-in-Council, 1922 might once again allow recourse to English Common law. Moreover, under the British Mandate in Palestine, reference was made to the Common law on this subject. Since the establishment of the State, however, less significance is attached to this reference. Recently it has even been stressed that there is no point in trying to adopt the English notion of custom, whose requirements are so rigid (notably as to antiquity) that the existence of a custom is not recognized unless it dates from 1189, the first year of the reign of Richard I. Indeed, this lack of flexibility renders recourse to English law, on this point, totally unworkable and merely underlines the necessity of finding a solution within the local—in this case—Ottoman law.
1 Cohen et al. v. Capun (1940) 7 P.L.R. 80.
2 Wolfson v. Sphinx Co. Ltd. (1951) 4 P.E. 26; Silbiger et al. v. Dickman (1956) 22 P.E. 148.
3 See (1972) 65 Divrei Haknesset 310–320, 396–398. From this debate one can gather several very curious arguments: Switzerland must be a primitive country, because custom is necessary, according to the Minister of Justice, only in primitive countries, and article 1 of the Swiss Civil Code considers custom to be a source of law in that country. The Minister hailed the legislative capacity of modern democratic regimes as proved by their prompt dealing with needed innovations, thus rendering superfluous any recourse to custom. This tribute paid to the legislative function sounds odd in a debate on a Bill which took a quarter of a century to prepare. Some speakers in the debate spoke loftily about this Bill being a milestone on the road to the so-called “juridical independence” of the State of Israel. The fact is, however, that the Ottoman legislation, because of its little known Moslem sources and background, and also because it is written in Turkish, never constituted a menace to Israel's “juridical independence”. This legislation has simply been ignored to an ever growing extent. The “juridical independence” was, and still is, endangered by the reliance on English and, lately, also American law. But the supposed defenders of the highly praised “juridical independence” do not seem to initiate any comparably sweeping drive against these laws.
4 (1971) H.H. no. 978, pp. 148–150.
5 “…those provisions do not differ greatly from the provisions of English Common law”, per Justice Copland, in Cohen et al. v. Capun supra n. 1 at p. 84. “Comparing those principles with the principles of English Common law, we find that there is no great difference between them”, per Frumkin J. Ibid. at p. 89. These are but two more expressions of one and the same tendency, seen in the courts under the British Mandate, to discover similarities, whether real or imaginary, between English and Moslem law. See also the dictum by Manning J. in Palwoodma v. Majdelani (1937) 4 P.L.R. 271; (1937) S.C.J. 268; (1937) 2 C.L.R. 73, para. 24: “References have been made to English law and there is little difference in principle between it and the Ottoman law”.
6 “All this question of similarity or dissimilarity between local law and English law is only of theoretical interest, for the purpose of comparative law, because the authors of the Mejelle laid down rules of their own in this matter, and it is these rules that we have to interpret, without turning to English precedents, which grew on a different ground. At most [we can do so] merely in order to draw analogies”. Per Landau J. in Silbiger v. Dickman, supra n. 2 at p. 152.
7 See Professor Tedeschi's, G. articles “Repeal of the Mejelle—Its Background and Timing” (1972) 2 Iyunei Mishpat 458–60Google Scholar and “Custom in Israel Law: Present and Future” (1973) 5 Mishpatim 9–60 at pp. 57–8.
8 Halsbury-Simonds, , The Laws of England (3rd ed., 1955), vol. 11 p. 158 ff.Google ScholarAllen, , Law in the Making (6th ed., 1958) 130, 149.Google Scholar
10 In fact while the French original uses the adjective coutumier, the Turkish translation renders the meaning by using nouns: òrf ve ãdet (hukuku) (= the law of) custom.
11 This Ottoman Law applies in Israel under Ordinance No. 40 of 1919, published on September 25, 1919. See Drayton, The Laws of Palestine (1934) vol. II, p. 1014. This Ottoman Law has no translation into any European language, nor any reliable translation into any Semitic language. The phrase, within article 84, which contains the term örf ve ādet, states that the gift of consolation (mut'a) given in certain circumstances to a repudiated wife, is determined according to custom (ör/ ve ãdet).
12 2 Rajab 1292 ve 9 Haziran 1295 (=June 22, 1879) tarihli Usui Muhakeme-i Hukukiye Qānūn Müvaqati in Destūr, the Official Publication of Laws, vol. 4, pp. 257–318 at p. 276.
13 See Destūr, second series, Istanbul 1334, vol. 6, p. 1352. Local courts had considerable difficulty in ascertaining the exact wording of the Turkish text binding in Israel. (See Ginossar, S., “Validity of Mere Admission of Debt” (1952) 8 HaPraklit 227–247 at p. 232Google Scholarin fine and n. 6 there, referring to the five different versions of article 80 which were before the court in Blumenfeld et al. v. Imperial Chemical Industries (1937) 4 P.L.R. 228, 233–4. There can be no doubt, how ever, that the Turkish text binding in Israel is the one referred to at the beginning of this note, because this amendment is dated 27 Dhi 'l-Qa'de 1332, 4 Tishrīn-i Evvel 1330=October 18, 1914, i.e., thirteen days before November 1, 1914. According to article 46 of the Palestine Order-in-Council 1922, “The jurisdiction of the Civil Courts shall be exercised in conformity with the Ottoman Law in force in Palestine on November 1, 1914”.
14 The promulgation of the Mejelle was never completed because of a change of power in the Ottoman Empire, which put an end to the policy of reform, including the reform of the law carried out under the former regime.
15 Articles 36, 38, 40 and 41 use the term ādet, which appears in this solitary form—as far as we know—only once more in the Mejelle, in article 1415.
16 Örf, in this solitary form, mentioned in article 45. Articles 43 and 44 contain forms which are derived from örf: ma'rūf (articles 43 and 44), örf-en (article 43). Derived forms of örf are also found in articles 1339 and 1498 of the Mejelle and articles 87 and 109 of the Ottoman Family Law of 1917.
17 Hooper translates the explanation by adding the verb “to justify”: “custom, whether public or private, may be invoked to justify the giving of judgment”. However, the verb “to justify” is not found in the Turkish original.
18 See Katifi, A. H., “Quelques aspects du modernisme juridique en Orient arabe” in Charney, Jean-Paul (Editor), Normes et Valeurs dans l'Islam contemporain (Paris, 1966), 301–312 at p. 305.Google Scholar
19 Instead of “an” Hooper puts in this place the words “any more”. But these are not found in the original Turkish.
20 Destūr, vol. 1, pp. 19–37, at p. 25 last paragraph. The above citation is Hooper's translation, p. 6, except for the correction in the preceding note.
21 Cohen v. Capun supra n. 1 at pp. 87–88.
22 See the distinction drawn by Olshan J. (as he then was) in Wolfson v. Sphinx Co. Ltd. (see supra n. 2) between, on the one hand, “countrywide custom” (paras. 3 and 4 of his judgment, p. 30) and “local custom” (para. 4), and on the other hand “special custom” (p. 32 para. 7). “Special custom” refers probably to “commercial and professional custom” or perhaps to what he terms “community custom” (para. 4) “From the evidence brought by the claimant” in the lower court “the learned judge could conclude, at maximum, that custom existed, not among all the employers in the country, but only among a part of the employers, that is to say the Jewish ones” (p. 32, para. 7). But even that “special custom” was not proved because it lacked “the element of certainty” (p. 32, para. 7). On the other hand, Silberg J. (as he then was) held in his minority opinion that the non-Jewish company was bound to pay compensation to its dismissed employee, who had been employed by her in a predominantly Jewish quarter of Haifa, because “every custom, as is well known, is linked to a certain place” (p. 36, para. 7). In the same minority opinion, Silberg J. had serious doubts as to whether the requirement of antiquity “is also a sine qua non for the existence of a custom here in this country” (p. 36, para. 63). This minority opinion of Silberg J. was in fact unanimously adopted in Silbiger (see supra n. 2). Landau J. decided that the claimant need not prove the time of the beginning of the custom (p. 152, para. 5) and Witkon J. went even further by assuming that a usage (nohag) prevalent in 1956 was necessarily legally binding in 1942 (p. 155). Witkon J. also applied the criterion of whether the usage (nohag) claimed is generally accepted and widely known (p. 155). See also the analysis of the statistical data cited by Cheshin J. in Woljson (pp. 33–34) and those examined by Landau J. in Silbiger (pp. 153–154).
23 “In ca. 5/40 [i.e., Cohen v. Capun, supra n. 1] an attempt was made to interpret the articles of the Mejelle. I have nothing to add to what is said there in order to interpret the general principles of the law”. Per Landau J. in Silbiger v. Dickman, supra n. 2 at p. 152, beginning of para. 5.
24 Hooper here translates the Turkish word magsad as “object”. However, “intention” is a better translation, all the more so since Hooper himself translates maqsad, one line earlier in the same article, as “intention”.
25 See Meron, Y., “The Mejelle Tested by Its Application” (1970) 5 Is.L.R. 201–215 at pp. 211–213.Google Scholar
26 According to Hooper's translation, p. 6. This important explanation was left unheeded in Israel's Supreme Court. See, for example, H. Cohn J. in his minority opinion in Mekorot Ltd. v. Zacharish (1961) 15 P.D. 1660, 1662 F. where articles 2 and 3 of the Mejelle are relied upon in order to deny the validity of an admission made unwittingly.
27 Ibn Nujaym's Al-Ashbah wal-Naza'ir, mentioned in the Report of the Commission Appointed to Draft the Mejelle, pp. 4 and 6 of Hooper's translation.
28 La science connue sous le nom de Usul ou Principiologie du droit, est … d'une utilité secondaire. Son caractère abstrait n'a rien de juridique. Si les hanéfites ont tendu à la rapprocher des cas, elle est restée sans utilité pour une étude du droit positif musulman. Al-Hamawi (Ghamz, I, 245), déclare nettement qu'en cas de conflit entre une règle établie par cette science et une solution donnée, la solution doit prévaloir. Chehata, Chafih, Essai d'une Théorie Générale de l'Obligation en Droit Musulman (Le Caire, 1936) (Paris, 1969) 46–47.Google Scholar
29 Modern Arab jurists try to distinguish between 'urf and 'āda by claiming that the former, which is used in the first article of the Egyptian, Syrian and Iraqi Codes, means “custom”, while the latter means “usage”. Orientalists claim that the difference is merely geographical: 'āda is used in Indonesia, 'ūrf in North Africa. See the article 'ãda in the Encyclopaedia of Islam, New Edition, vol. I, pp. 170–174, 170a. In the traditional texts of Moslem law it seems, however, clear that 'urf and 'ãda have an identical legal meaning. This can also be gathered from article 36 of the Mejelle cited supra.
30 In the Commentary on Laws Relating to Contracts edited by Professor Tedeschi, Professor Zeltner treats article 1 of the Law of Sale, 1968 in much the same way as we treat the maxims contained in the first hundred articles of the Mejelle. The definition of sale, contained in article 1 is taken from Jewish Law. Owing, however, to the evident discrepancy between the definition and the provisions of the same Law, Professor Zeltner waters down the definition, by saying that, though the definition might be of academic interest, “there is no identity between the concepts of sale of our Law and those of Jewish Law” (p. 16), and, at any rate, the place of definitions is not in the text of the law. This is the weight given to a provision in a new and obviously binding law. Such a free interpretation is a fortiori possible with regard to articles in Ottoman Law which were never meant to be binding. It may be, moreover, that the editor, Professor Tedeschi, does not wholly share Professor Zeltner's opposition to the inclusion of that definition in article 1 of the Law of Sale 1968, for in principle Professor Tedeschi seems to favour the inclusion of definitions in the text of the law. See Tedeschi, G., “About the Gift Law 5728–1968” (1969) 1 Mishpatim 639–647 at p. 639.Google Scholar
31 In fact the reliance on the maxim serves no useful purpose at all, because if the judge finds a relevant rule of law in the body of the Mejelle, any further reference to the maxim is superfluous.
32 “Usage” in English law is indeed freed from most of the rigid requirements characteristic of the English “custom”: usage need not have existed from time immemorial, and need not necessarily be confined to a limited locality (but in the latter case it applies to a class or classes of persons). See Halsbury-Simonds op. cit. supra n. 8, vol. 11, p. 160 § 298, pp. 183, 184 § 343, pp. 184, 185.
33 Ibid., vol. 11, p. 183.
34 This is so in articles 244, 251, 569, 829, 1340, 1498. Article 826 contains an adjective derived from ādet: mu'tad, and article 1498 an adjective derived from örf: ma'ruf (although in this latter article örf: ve ādet is also mentioned), Örf, without ādet, is also found in articles 576 (örf-i beldi = local usage), 1339 örf-en = by usage) and 1584 (örf-u l-nās = people's usage), probably because these constructed forms called for some abbreviation.
35 Articles 291, 527, 528, 555, 816.
36 Articles 230, 495. 554. In all these cases örf appears in the same constructed form örf-ü belde (which means local usage). The word ādet is probably omitted in these cases merely for the sake of brevity.
37 Articles 168, 188 and 622, but article 389 uses the unusual term of ta'āmul (mentioned also in article 37 in the Introduction to the Mejelle) and article 1629 employs ādet-en.
38 Wolfson v. Sphinx Co. Ltd. supra n. 2 at p. 35 in fine.
39 Per Vaughan C. J., in Collsherd v. Jackson (1672) Freem. K. B. 63, 64. Cited by Allen, op. cit. p. 136 n. 2. See also Allen, ibid. at p. 107: “if a custom is proved in an English court by satisfactory evidence to exist and to be observed, the function of the court is merely to declare the custom operative law… the sanction of the court is declaratory rather than constitutive”.
40 Halsbury-Simonds, op. cit supra n. 8, vol. 11, p. 16.
41 1 Megoni, 385 (as cited in Swabey).
42 Per Lindley M. R. in Allen v. Gold Reefs of West Africa, Ltd. (1900) 1 Ch. 656, 674. Swabey is, however, differently summarized in the English and Empire Digest (1955) vol. 9 p. 86.
43 Chehata, Chafik, Etudes de Droit Musulman (Paris, 1971) 41.Google Scholar Similarly, Goidziher, I.The Zahiris, Their Doctrine and Their History (Leipzig, 1884, English translation by Behn, W., Leiden, 1971) 188Google Scholar remarks that “Among the legislation on oath, pledges, measures etc. we often meet the opinion that, in these instances, semantics and customs are decisive, and that they ought to be preferred to deductions that would have to be drawn from what has been traditionally fixed”.
44 “The language expressing a trade custom is taken to be imported into the language used by contracting parties, whether written or verbal, because it is presumed that they had the usage in their minds when they made their contract, made it in reference to that usage and intended that the usage or custom should form part of it”. Per Lord Atkinson in Produce Brokers Co. Ltd. v. Olympia Oil and Coal Co. Ltd. (1916) 1 A.C. 314, H.L. at p. 324.
45 Sharh al-Majalla (Beyrut, 1923) 38.
46 Schacht, J., An Introduction to Islamic Law (Oxford, 1964) 193.Google ScholarCoulson, N.J., A History of Islamic Law (Edinburgh, 1964) 125.Google Scholar To this very day Moslem Religious Courts, in Jordan for example, deny the validity of “customary documents”(mustanadāt 'urfiyya). See articles 77 and 79(2) of both the 1959 (presently in force) and the 1952 Jordanian Law of Procedure of the Moslem Religious Courts. The same provisions are found also in the 1951 Jordanian Law of Procedure of the Moslem Religious Courts, articles 78 and 80(2).
47 Meron, Y., L'Obligation alimentaire entre époux en Droit musulman hanéfite (Paris, 1971) 193, 197, 205.Google Scholar
48 ibid. at pp. 197–198.
49 ibid. at pp. 200–201.
50 Cited by Ibn 'Āidīn (died 1836). See ibid.
51 The Moslem wife is supposed to be confined in her husband's home. He is not therefore obliged to furnish her with “the means of going out”, namely shoes.
52 According to the historian Balādhuri (died 892). See Schacht, J., An Introduction to Islamic Law (Oxford, 1964) 19.Google Scholar
53 We find, for example, a note that Qādi Husayn (d. 462 = 1069–1070 C.E.) put consideration for 'urf—called now common usage and at other times what could be called common sense as an important factor in legal decision”. Goldziher, J., The Zahiris, Their Doctrine and Their History (Leipzig, 1884, English translation by Behn, W., Leiden, 1971) 187.Google Scholar
54 See Coulson, N.J., “Muslim Custom and Case Law” (1959) 6 Die Welt des Islams 13–24 at 14–15.CrossRefGoogle Scholar
55 The capital importance of the practice of the courts ('āmal) in North Africa was brought to the knowledge of Western scholarship by the works of the late Milliot, Louis (See his Introduction à l'Etude du Droit Musulman (Paris, 1953) 167–178).Google Scholar However, for the purposes of a country of Hanafi obedience, such as Israel, only his remarks in § 165, pp. 173–4, ibid. are of importance.
56 Thus, starting at the latest in the twelfth century, the practice of Hanafi Moslem courts has been to believe a deserted wife claiming on oath, that her husband did not divorce her, and that he did not leave her with maintenance before his disappearance. This practice was based on the isolated opinion of the cadi Zufar, who died in 775, and whose teachings on this point, as on so many others, had not been followed for hundreds of years. See Meron, Y., L'Obligation alimentaire entre époux en droit Musulman hanéfite (Paris, 1971) 299.Google Scholar Burhān al-Din 'Ali bn-u Abī Bakr al-Marghīnānī, Al-Hidãya (Cairo, 1936) vol. 2, p. 33.
57 See the reference supra n. 3.
58 See (1) The Pledge Law, 1967, sec. 24 (21 L.S.I. 44); (2) Law of Sale, 1968, sec. 5 (22 L.S.I. 107); (3) Hire and Loan Law, 1971, sec. 3 (25 L.S.I. 152); (4) Law of Sale (Int. Sale of Goods) 1971, secs. 9, 21, 25, 38, 42 (25 L.S.I. 32); (5) Law of Contracts (General Part) Bill, 1969, sec. 26 (1969) H.H. no. 133. For a fuller list of Israel laws using the term nohag see Tedeschi, G., “Custom in Israel Law: Present and Future” (1973) 5 Mishpatim 9–60 at p. 57.Google Scholar
59 (1972) 65 Divrei HaKnesset 311 a.