Historical Background and Sources of Israeli Law

Question 1

What are the three modern periods regarding Israel?

Answer 1

1. Ottoman Empire (1517 to 1917).
2. British Mandate (1917 to 1948).
3. Establishment of the State of Israel (1948 onwards).

Question 2

Describe the Ottoman Empire Period.

Answer 2

Two major influences — Western modernization and traditional, religious norms. Enactment of codes in various fields based on models drawn from Europe (mostly France). Islamic law (Mejelle) with vast, comprehensive civil code based on Sharia law.

Question 3

Describe the British Mandate Period.

Answer 3

Allied victory started the British Mandate in Palestine. The Balfour Declaration expressed Britain’s commitment to establishing a Jewish national home in Palestine. The League of Nations granted Britain the mandate, and the legal system of Palestine underwent a process of Anglicization — laws rooted in Islamic or continental European law were re-fashioned based on principles of common law.

Question 4

What was the legislation that governed the military rule between 1917 and 1920?

Answer 4

Palestine Order in Council.

Question 5

What were the official languages under the Palestine Order in Council?

Answer 5

Arabic, English, and Hebrew.

Question 6

What does art. 46 of the Palestine Order in Council say?

Answer 6

Laws existing in Palestine (Ottoman law) shall remain in force, and in the situation of a lacuna, where there is a vacuum of law on a particular issue, can refer to the doctrine of equality and common law in force in England.

Question 7

Sherman v Danovitz.

Answer 7

Plaintiff was run down by truck, argued that English common law should apply (so he can recover for personal injury). English law could be used by the courts only so far as “the circumstances of Palestine and its inhabitants permit,” and since the customs and habits of Israel and Great Britain differ, the English law of torts cannot be imported.

Question 8

Ayoub v Farouqi.

Answer 8

Plaintiff entered into a land purchase agreement and wanted a remedy of specific performance not recognized in Ottoman law. Elements of Ottoman law in Israel should be seen as enriching Palestine’s legal system under art. 46, and should be read in their “plain and just” meaning.

Question 9

London Society for Promoting Christianity Among the Jews v Orr.

Answer 9

Baby was placed in crib with hot water bottle that leaked and crippled her. Found that while some specific forms of tortious liability might be considered out of place in Palestine, the conception of a person being liable for holding out that they are qualified, but being negligent thereafter, is universal.

Question 10

When did the British Mandate end and how?

Answer 10

May 15, 1948 with the Declaration of Independence.

Question 11

What is notable about the Declaration of Independence?

Answer 11

It did not mention democracy, as Prime Minister David Ben-Gurion believed that the definition of democracy was bound to change.

Question 12

What was the first legislation enacted in Israel?

Answer 12

Law and Administration Ordinance.

Question 13

What did the Law and Administration Ordinance say?

Answer 13

Laws currently in force shall remain in force; as long as no new law concerning the courts is enacted, the courts should continue to function within the scope of powers conferred upon them by law.

Question 14

What case decided that English precedents were no longer binding in Israel?

Answer 14

Kochavi v Baker.

Question 15

Kochavi v Baker.

Answer 15

Decided that English precedents were no longer binding in Israel.

Question 16

How was Kochavi v Baker codified?

Answer 16

In 1972, a provision was added to the Law and Administration Ordinance to explicitly provide that statutory provisions directing courts to interpret legislation based on English law were no longer binding.

Question 17

What areas of law have primarily stayed the same after the British Mandate, and what areas have changed substantially?

Answer 17

Criminal law has stayed the same, but contracts and company law has changed substantially.

Question 18

Lion v Gubernick.

Answer 18

While English laws are repugnant to the purpose of creating the State of Israel, they should be upheld due to the principle of continuity — conservative approach to judicial review.

Question 19

Kol Ha’am v Minister of the Interior.

Answer 19

The Press Ordinance is not allowed to be applied. Infringement of democratic rights is only allowed when it disturbs public peace or creates serious harm — old laws that were enacted under the British Mandate must be interpreted in a manner consistent with the democratic character of the new State.
If the old law is inconsistent with the democratic character of the new state, they are invalid. Attitude in this case contrasted with attitude in Lion v Gubernick.

Question 20

What does the Foundations of Law Act say?

Answer 20

Section 1 states that when a court cannot find an answer to a question in statute or case law, or by analogy, “it shall decide it in the light of the principles of freedom, justice, equity, and peace of Jewish law and Israel’s heritage.” This is invoked when there is no answer in statute or case law, or by analogy.

Question 21

Hendeles v Bank Kupat Ha’am.

Answer 21

Secular viewpoint of Justice Aharon Barak says that Israeli identity should be made as consistent as possible with Western ideals of individual rights. There is a very narrow interpretation of the notion of lacuna, and only exceptional cases need to rely on the Foundations of Law Act. Reference may and should be made to foreign legal systems.

Question 22

Bill to Amend Foundations of Law Act

Answer 22

Bill to change “the principles of freedom of justice, equity, and peace of the Jewish heritage” to “the principles of Jewish law.” Turn to Jewish law in the event of a lacuna in statute or case law, without having to decide by analogy. This Bill was not passed, and the only change was to insert explicit mention of Jewish law.