¹ They are, in chronological order,—

in 1850, the Code of Commercial Law, being merely “un extrait du Code de commerce français [of 1807], avec certaines omissions” ( Young, G., Corps de Droit Ottoman (Oxford 1906) vol. 7, 55, note 1)Google Scholar; in 1858 (and amended in 1863), the Penal Code, similarly “calqué sur le Code pénal français” (of 1810, op. cit., 1, note 1); in 1863, the Code of Maritime Trade, mainly based on the relevant part of the above-mentioned French Commercial Code, “mais son compilateur a pris en considération les Codes de commerce de Hollande, de Sardaigne, et même ceux d'Espagne, de Portugal, de Deux-Siciles et de Prusse” (op. cit., 103, note 1); in 1879, the Code of Criminal procedure, “calqué, à peu de différence près, sur le Code d'instruction criminelle français [of 1808]. La traduction est littérale en maints endroits, approchante le plus souvent” (op. cit., 226, note 1); and lastly, in 1880, the Code of Civil Procedure, “calqué en général sur le Code de procédure civile français de 1807 et quelques parties en sont une traduction” (op. cit., 174, note 1). It had been preceded in 1861 by a Commercial Procedure Code, which had been devised as a simplified prototype.

² English translations of the Mejelle were published by W.E. Grigsby (Nicosia, 1895) and C.A. Hooper (London, 1934). A French version was included in Young, op. cit. vol. 6, 169 ff., and a Hebrew translation was published by Justice Frumkin, G. (3rd ed., Jerusalem, 1952).Google ScholarPubMed Discrepancies among those versions often add to the difficulties of construction.

³ There are also three Parts dealing with adjective law ( Hooper, , The Civil Law of Palestine and Trans-Jordan, vol. 2 (Jerusalem, 1936) 18).Google Scholar

⁴ Tute, R.C., The Ottoman Land Laws (Jerusalem, 1927)Google Scholar; Goadby, E.M. and Doukhan, M.J., The Land Law of Palestine (Tel Aviv, 1935).Google Scholar The Mejelle contains a great number of provisions touching the law of immovable property, but they refer primarily to property of one category, viz. land held in full ownership (mulk) which covers a small part of the territory. The alternative forms of property, based on the idea of State ownership, had already been introduced at the time of the Ottoman conquest and found their expression in the Land Code of 1858, which preceded the Mejelle by a few years (Goadby & Doukhan, op. cit., 1–12).

⁵ “Contrary to common belief, the Ottomans, as Muslims, have never shown religious fanaticism on an organized scale, and their toleration was displayed to a remarkable degree…by their allowing their…subjects to maintain intact almost the whole of their institutions affecting their personal relations” (Hooper, op. cit., 30). “Of their own free will, the Ottoman Sultans were pleased to grant to [the] foreign traders extensive privileges, which became known as Capitulations…. The Capitulations, so freely granted by the Ottomans to foreigners as concessions at the outset, were later used by the latter as precedents to obtain fresh concessions as of right” (ibid., 31).

⁶ The division was not identical for all the religious communities.

⁷ But the consuls were not deprived of their powers in non-contentious matters (Personal Status (Consular Powers) Regulations, 3 Laws of Palestine 2604).

⁸ Their names were changed, from magistrates, to magistrates' courts; from courts of first instance, to district courts and from court of appeal, to Supreme Court. New courts were also created, such as the land courts, the court of criminal assize and— later—municipal courts (for petty offences), rent tribunals, etc.

⁹ According to Prof. Tedeschi, the introduction of English law during the Mandate cannot be described as a true reception (“On Reception and on the Legislative Policy of Israel”, in 16 Scripta Hierosolymitana, Studies in Israel Legislative Problems (1966), 13). On the other hand, English law was deliberately resorted to in areas in which it did not apply according to law, e.g. notwithstanding the existence of Ottoman legislation in pari materia ( Tedeschi, , “Private Law and Legislation Today”, in 5 Scripta Hierosolymitana, Studies in Law (1958), 39 ff.Google Scholar; Yadin, U., “The Law of Succession and other Steps towards a Civil Code”, in 16 Scripta… 113).Google Scholar A full discussion of the problem of lacunae in the law and art. 46 of the Palestine Order in Council will be found in Tedeschi, , Studies in Israel Law, 2nd ed. (Jerusalem, 1960) 166–238 Google Scholar; vide also Hooper, op. cit., vol. 2, 64–81.

¹⁰ The Ottoman Code of Criminal Procedure was abrogated as early as 1924. The Penal Code, already mutilated, was eventually replaced by the Criminal Code Ordinance, 1936, which was based on the common law. Two years later came the turn of the Civil Procedure Code, of which the only portions to subsist were those regulating provisional attachments (a field somewhat neglected in English Rules of Court) and isolated provisions affecting the law of evidence or substantive civil law (cf. infra, n. 57). As regards the Commercial Code, most of its parts had been replaced by a number of Ordinances inspired by English law (on Companies, in 1921, and again in 1929; on Bills of Exchange, in 1929; on Partnerships, in 1930; on Bankruptcy, in 1936). The Code of Maritime Trade, rarely referred to, remained in force (cf. infra, n. 33).

¹¹ The religious foundation of the Mejelle apparently exercised an inhibiting influence. The Ottoman legislator himself had taken pains not to condone any amendment being made to the text, other than by the indirect method of adding provisions to other enactments, such as the Code of Civil Procedure (cf. preceding note and n. 57, infra; and vide Suwwan v. Sheikh Ali (1934–1935) 2 P.L.R. 322).

¹² Law and Administration Ordinance, 1948, sec. 11 (1 L.S.I. 9).

¹³ Cohn, H., “Secularization of Divine Law”, in 16 Scripta… 55.Google Scholar

¹⁴ Elon, M., “Communal Legislation in Jewish Law”, in Studies in Law in Memory of A. Rosenthal (in Hebrew), (Jerusalem, 1964) 1–54 Google Scholar; Finkelstein, L., Jewish SelfGovernment in the Middle Ages (N.Y., 2nd ed. 1964).Google Scholar

¹⁵ Silberg, M., “Law and Morals in Jewish Jurisprudence” (1961) 75 Hvd. L.R. 306 ff.Google Scholar

¹⁶ Cf. Kahana, K., “The Case for Jewish Civil Law in the Jewish State (London, 1960).Google Scholar For a discussion of the problem see Akzin, B., “Codification in a New State” (1956) 5 Am.J. Comp. L. 44, 64 ff.CrossRefGoogle Scholar

¹⁷ Num. 27.8–11: “… If a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter. And if he have no daughter, then ye shall give his inheritance unto his brethren. And if he have no brethren, then ye shall give his inheritance unto his father's brethren. And if his father have no brethren, then ye shall give his inheritance unto his kinsman that is next to him of his family, and he shall possess it. And it shall be unto the children of Israel a statute of judgment, as the Lord commanded Moses.”

¹⁸ Yaron, R., Gifts in Contemplation of Death (Oxford University Press, 1960) 10, 18.Google Scholar

¹⁹ Neufeld, E., Ancient Hebrew Marriage Laws (London, 1944) 176 ff.Google Scholar and especially 177 (on the hostility expressed in Biblical texts to the misuser of the right of repudiation).

²⁰ “Divorce under Jewish law is an act of mutual consent contracted between husband and wife and supervised by the Rabbinical authorities only so far as necessary to secure that all requirements of Jewish law in this respect have been observed” (Vol-kenberg v. Volkenberg (1934–35) 2 P.L.R. 365; cf. Finkelstein, op. cit. 29–30). Independently of such consent, sources of Jewish law make provision for groundsjustifying a divorce ( Horowitz, G., The Spirit of Jewish Law, N.Y., 1953, § 152, p. 275).Google Scholar The right to request a divorce for good cause shown has also been extended to the wife, who may petition the rabbinical court to direct her husband to deliver a bill of repudiation (G. Horowitz, op. cit. §140, p. 255). If need be, “moral, religious and social pressure” will be brought to bear on the reluctant spouse until he agrees to the dissolution of the marriage ( Vitta, E., The Conflict of Laws in Matters of Status in Palestine, Tel Aviv, 1947, 160).Google Scholar

²¹ E. Neufeld, op. cit., 118 ff.

²² Cohn, H. in 16 Scripta… 100–01.Google Scholar

²³ Tedeschi, in 16 Scripta… 42, 44Google Scholar; Yadin, ibid. 136.

²⁴ The Institute inaugurated in 1962 is annexed to the Faculty of Law of the Hebrew University. In a first volume, published in 1965, the substance of about one thousand opinions has been indexed, to serve as a “representative volume” (Indices to the Responsa, of Jewish Law, The Responsa of R. Asher b. Yehiel, edited by Prof. M. Elon, Introduction, p. i). The total number of Responsa is estimated at about one quarter million (ibid. p. viii).

²⁵ This expression is borrowed from David, R., Les Grands Systèmes du Droit Contemporain (Paris, 1964)Google Scholar, where the most important legal systems of the world are classified into three groups, viz. the Romano-Germanic, the common law and the Socialist groups (§§13–17).Google Scholar It is realized that the numerous cases of cross-division and interpenetration make any attempt at grouping “apt to be unsatisfactory” ( Gutteridge, H. C., Comparative Law, 2nd ed. 174)Google Scholar: that of Prof. R. David is used here for the sake of convenience.

²⁶ English translations of the Law of Return, 1950, appear in 4 L.S.I. 114, and of the Law of Citizenship, 1952, in 6 L.S.I. 30. Both enactments were also published in (1953) 2 I. & Comp. L.Q. 492, in United Nations Legislative Series, 17 Laws concerning Nationality (1954) 263–67, and in (1954) 81 Journal du Droit International 263–71. Cf. on the subject, Rosenne, S., “The Israel Nationality and the Law of Return” (1954) 81 Journal du Droit International 5–63 Google Scholar; Margalith, H., “Enactment of a Nationality Law in Israel” (1953) 2 Am.J. Comp.L. 63–66 CrossRefGoogle Scholar; Warloff, L.A., “Citizenship in the State of Israel” (1958) 83 N.Y.U.L.R. 857–61.Google Scholar

²⁷ Akzin, B., “The Structure of Government in Israel”, in Public Administration in Israel and Abroad (1960) 7–14 Google Scholar; “The Knesset” in (1961) 13 Intern. Soc. Science Journ. 567–82; Badi, J., Fundamental Laws of the State of Israel (N.Y., 1961)Google Scholar; Dror, Y., “Constitutional Trends in States that Recently have Become Independent—Israel”, in Israeli Reports to the Sixth International Congress of Comparative Law (1962) 77–96 Google Scholar; Rubinstein, A., “Israel's Piecemeal Constitution” 16 Scripta… 201–218.Google Scholar

²⁸ Akzin, B., “Codification in a New State” (1956) Am.J. Comp.L. (44–77)Google Scholar; Tedeschi, G. and Englard, Y., “Les Problèmes de la Codification à la Lumière des Expériences et Situations Actuelles” in Israeli Reports to the Sixth International Congress of Comparative Law (1962) 1–14 Google Scholar. The only code that was entirely drafted and completed was that relating to Military Justice (9 L.S.I. 184): it was also designed as a testing ground for the revision of the Codes of Criminal Law and Criminal Procedure.

²⁹ Hereafter is an enumeration of the most important chapters that have so far been revised—

1952 Bribery 6 L.S.I. 32

Assault on police officers 49

1954 Death penalty (abolition) 8 L.S.I. 63

Modes of punishment 206

1955 Housebreaking (burglary) 9 L.S.I. 79

Offences committed abroad 10 L.S.I. 7

1957 Offences by public servants 11 L.S.I. 89

Security of the State 186

1959 Bigamy 13 L.S.I.152

Concealment of offences 227

1962 Prostitution 16 L.S.I. 67

1963 Deceit, blackmail, extortion 17 L.S.I.153

³⁰ See Shalgi, M., “The New Code of Criminal Procedure in Israel” (1966) 1 Is.L.R. 448–61.Google Scholar

³¹ Not yet translated into English (cf. (1966) 1 Is.L.R. 370).

³² They are, to date, the chapters on Limitation (1958, 12 L.S.I. 129) and Agency (1965, not yet translated). Cf. Yadin, , “The Law of Succession and other Steps towards a Civil Code” 16 Scripta… 104 ff.Google Scholar

³³ They comprise an important Bill for the complete overhaul of the law relating to immovable property, which was presented to the Knesset in 1964 ( Landau, M., “Legislative Trends in the Land Code Bill” 16 Scripta…. 134 ff.)Google Scholar A law on maritime navigation (14 L.S.I. 60) was substituted for the first chapter of the Ottoman Code of Maritime Trade of 1863 (cf. supra n. 10, in fine; see also the Mortgage of Ships Ordinance, 1948, 2 L.S.I. 18).

³⁴ Tedeschi, , in 16 Scripta… 44–45, 50.Google Scholar

³⁵ A typical example is afforded by the Law of Succession ( Yadin, , in 16 Scripta… 111 ff.).Google Scholar

³⁶ This Institute is also connected with the Faculty of Law of the Hebrew University.

³⁷ The discussion of this question was one of the main objects of the Israel Convention of Lawyers which was held in Jerusalem in 1958. Vide the Proceedings.

³⁸ Save for the purpose of such matters as were deemed to have been finally “codified”, such as the Law of Succession (sec. 150 reads: “In matters of succession article 46 of the Palestine Order in Council, 1922–1947, shall not apply”: vide Yadin, in 16 Scripta… 109–10).Google Scholar

³⁹ Vide the reports of Baker, H. and Shimron, E., International Lawyers Convention in Israel 1958 (Jerusalem 1959) 33–39 and 44–45, respectivelyGoogle Scholar; Yadin, , “Reception and Rejection of English Law in Israel” (1962) 11 I. & Comp. L.Q. 59 ff.CrossRefGoogle Scholar; cf. Procaccia, G., “Problems of Legislation in Company Law” in 16 Scripta… 156–157.Google Scholar

⁴⁰ Procaccia, op. cit., 155 ff. ; cf. Yadin, , “Proposed new Israeli Company Law” (1958) 13 Business Lawyer 277 ff.Google Scholar

⁴¹ Gorney, U., “American Precedents in the Supreme Court of Israel” (1954/55) 63 Hvd.L.R. 1194ff.Google Scholar

⁴² An additional reason for the continuing importance of the common-law ingredient in the law of Israel is the fact that English is the second language of the young intel ligentzia of the country. In consequence the professional literature, in the form of text-books and periodicals, accessible to them, is that published in English—and naturally this literature employs concepts, analogies and terminology drawn from the background of Anglo-American law (cf. Levontin, A.V., “Legal Education in Israel” (1964) 8 (N.S.) J.Soc. Pubi. Teachers of Law 15, 20).Google Scholar

⁴³ Rabbinical Courts (Jurisdiction) Law, 1953 (7 L.S.I. 139). See on the subject: Bentwich, N., “Changes in the Law of Personal Status in Israel” (1954) 66 Juridical Review 271 Google Scholar; Gottschalk, R., “Personal Status and Religious Law in Israel” (1954) 3 I. & Comp. L.Q. 673 CrossRefGoogle Scholar; Laufer, J., “Marital Law in Transition: The Problem in Israel” (1960) 9 Buffalo L.R. 321 Google Scholar; Levontin, A.V., “Foreign Judgments and Foreign Status in Israel” (1954) 3 Am.J. Comp. L. 199.CrossRefGoogle Scholar

⁴⁴ A comprehensive “Individual and Family Law” Draft, prepared in 1955 by the Ministry of Justice, was split into its component parts, some of which were subsequently enacted as separate statutes. These include, to date, the Names Law, 1956 (10 L.S.I. 95); the Family Law Amendment (Maintenance) Law, 1959 (13 L.S.I. 73); the Adoption of Children Law, 1960 (14 L.S.I. 93) ; and the Capacity and Guardianship Law, 1962 (16 L.S.I. 106). Vide Yadin, , in 16 Scripta… 120 ff.Google Scholar; and, on the part played by the Harvard Law School–Israel Cooperative Research for Israel's Legal Development, ibid., 105.

⁴⁵ Penal Law Amendment (Bigamy) Law, 1959 (13 L.S.I. 152).

⁴⁶ Marriage Age Law, 1950 (4 L.S.I. 158).

⁴⁷ Women's Equal Rights Law, 1951 (5 L.S.I. 171).

⁴⁸ Tedeschi, , 16 Scripta… 34.Google Scholar

⁴⁹ This constitutes perhaps the most striking departure from Anglo-American prolixity, which corresponds to the “exceptional” character of statute-law.

⁵⁰ But, in the opinion of Tedeschi (op. cit., 36), “[there] is rather a readiness to accept its inspiration from a number of spheres in which the principles commend themselves, and to select and adopt those solutions which appeal to us.” On the reluctance of orthodox Jews to such secular handling of divine law, see H. Cohn, ibid. 102.

⁵¹ Yadin, , “Reflections on a New Law of Succession” (1966) 1 Is.L.R. 134 ff.Google Scholar, and cf.supra, n. 35.

⁵² For a criticism of this limitation, see Tedeschi, op. cit., 34–35.

⁵³ Levit. 19.13: “Thou shalt not oppress thy neighbour, nor rob him; the wages of a hired servant shall not abide with thee all night until the morning.” Deut. 24.14–15: “Thou shalt not oppress a hired servant that is poor and needy, whether he be of thy brethren, or of thy sojourners that are in thy land within thy gates: ín his day thou shalt give him his hire, neither shall the sun go down upon it (for he is poor, and setteth his heart upon it); lest he cry against thee unto the Lord and it be sin in thee”.

⁵⁴ Wage Protection Law, 1958 (12 L.S.I. 100). Vide I. Zamir, , “Labour and Social Security” 16 Scripta… 298, at 313Google Scholar; and, on the over-effectiveness of that law, op. cit., 320–21.

⁵⁵ Cohn, H., in 16 Scripta… 55.Google Scholar

⁵⁶ For an assessment of the conflicting views, see I. Englard, , “The Relationship between Religion and State in Israel” in 16 Scripta… 254–275 Google Scholar, where, for the sake of safeguarding religious values, the author proposes a modus videndi substantially based on separation of religion and State. Paradoxically, H. Cohn advocates the secularization of divine law, lest it be kept so “intact” “that it will remain buried in libraries and synagogues, out of touch with the pulsing life of the law” (op. cit., 102–03).

⁵⁷ With a view to filling gaps in the Mejelle, the Ottoman Code of Civil Procedure borrowed (cf. supra, n. 11) directly from the French Civil Code the provisions of the latter's arts. 1134, 1146–53, 1341, 1342 and 1348. That corresponding to art. 1153 was recently repealed. In the opinion of Hooper (The Civil Law of Palestine and Trans-Jordan, vol. 2, Jerusalem, 1936, 33) French influence is so strong that it is impossible to understand fully Ottoman legislative principles without a study of French law.

⁵⁸ This view is favoured inter alia by Tedeschi (16 Scripta… 49).

^58a On the Marxist doctrine of “withering away” of State and law, see Stone, J., Social Dimensions of Law and Justice (Sydney, 1966) chap. 10, 490–512.Google Scholar

⁵⁹ I. Zamir, op. cit., and especially his appraisal at 321 ff.

⁶⁰ In particular, on the complex origin of English law, see Radcliffe, and Cross, , The English Legal System, 1, 15, 234ff.Google Scholar; Potter, H., An Historical Introduction to English Law and its Institutions, 2nd ed. (1943) 3–4.Google Scholar

⁶¹ Tedeschi, however, deplores the lack of “basic orientation” and voices his concern over the viability of Israel's first attempt at codification (16 Scripta… 53–54). He nevertheless favours the eclectic method generally (cf. supra, n. 34).

⁶² Yadin, , in 16 Scripta… 112.Google Scholar

⁶³ Weisman, J., “The Kibbutz: Israel's Collective Settlement” (1966) 1 Is.L.R. 99 ff.Google Scholar; cf. Schwarz, R.D., “Social Factors in the Development of Legal Control: a Case Study of the Israeli Settlements” (1954) 63 Yale L.J. 471.CrossRefGoogle Scholar