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The Law of Laws

Published online by Cambridge University Press:  12 February 2016

G. Tedeschi
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Extract

It is natural for the Israeli legislature to endeavour to free itself of the Laws that were enacted in this country before the establishment of the State and which are still in force. The legislature cannot, however, fulfil this task without first resolving whether the abrogation of these Laws should be effected by simple annulment or by replacement with other laws (and in that event within which framework). The problem is laden with responsibility when fundamentals — such as certain rules incorporated in the Palestine Order-in-Council, the “remnants of the Mejelle” and the Interpretation Ordinance — are involved which affect the entire legal system and give it its special character. Moreover, the one problem leads to another: incidental to annulment and replacement, the need for complete regulation may present itself, including aspects not previously regulated in a direct, express and sure manner.

Rules which belong to a category that can be designated as the “Law of Laws” (“Laws” taken in the sense of all law and not merely statute) are in question. As opposed to others (which are “material” since they attach legal consequences to given facts of life), these rules concern the sources, the effect, the application and the construction of other laws.

Type
Articles
Information
Israel Law Review , Volume 14 , Issue 2 , April 1979 , pp. 145 - 163
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1979

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References

1 See Zitelmann, E., “Geltungsbereich und Anwendungsbereich der Gesetze” in Festgabe f. K. Bergbohm (Bonn, 1919) 207 ff.Google Scholar; Broggini, , “Intertemporales Privatrecht” in Gutzwiller, et al. ed., Schweizerisches Privatrecht I (Basel and Stuttgart, 1969) 353, 415–18Google Scholar; Passarelli, Santoro, “Preleggi” in Noviss. Dig. Ital. XIII (Torino, 1966) 624Google Scholar; Giesker-Zeller, , Die Rechtsanwendbarkeisnormen, Beiheft zur Rheinischen Zeitschrift f. Zivil—und Prozessrecht, VI, 3 (Mannheim-Leipzig, 1914).Google Scholar

2 For instance with regard to inter-temporal law, to the application of the rules of the system according to subject matter, and to statutory interpretation.

3 In France there is a view that sec. 7 of the Law of 30 ventôse an XII (which served as the introduction of the Code Civil) abolishing general and local customs does not affect custom as a general source of law, because it was directed against customs existing prior to codification.

4 But a hint to custom is found in sec. 2 of the Einführungsgesetz zum BGB: “Law within the meaning of the Civil Code and this Law includes every norm”.

5 Cf. also sec. 14(b) of the Interpretation Ordinance in force in Israel.

6 See Travaux de la Commission de Réforme du Code Civil, Année 1948–49 (Paris, 1950) 263–327.

7 See for instance secs. 7–9 of the Austrian Code; sec. 12 of the preliminary chapter of the Italian Code; secs. 18–21 of the Canon Code; secs. 12–16 of the Mejelle; secs. 13–21 of the Louisiana Code; sec. 12ff. of the Quebec Code; sees. 1–101 to 1–106 and 1–201 of the Uniform Commercial Code.

8 Thus in the wholly apologetic article on the BGB, Zweigert, & Dietrich, , “System and Language of the German Civil Code 1900” in Stoljar, , ed., Problems of Codification (Canberra, 1977) 50.Google Scholar

9 Enneccerus-Nipperdey, , Allgemeiner Teil d. bürg. Rechts (15th ed., 1959) § 51 III, p. 320.Google Scholar

10 Ibid., at 232–62.

11 See Yadin, , “On the Interpretation of Knesset Laws” (1977) 31 HaPraklit 397, 428.Google Scholar

12 Englard, I., The Legal Capacity and Guardianship Law, 5722–1962Google Scholar (Commentary on the Law of Contracts) § 41, pp. 72–73.

13 We have in mind a technical limitation to the provision as such. That does not mean that the intrinsic concept cannot apply beyond that limit even under existing law. In Germany sec. 242 of the BGB is held to apply to all areas of law. See Enneccerus-Nipperdey op. cit., § 34 p. 238.

14 See Kohn, L., A Constitution for Israel (1949, in Hebrew) sec. 77Google Scholar; Akzin, B., Project of a Constitution for the State of Israel (Tel Aviv, 1965, in Hebrew) sec. 10.Google Scholar

15 Bill of the Law on the Fundamentals of Law, 1978, sec. 2.

16 Shiloh, I., “Return to Jewish Law” (1970) 24 HaPraklit 363, 375.Google Scholar

17 Barak, A., “The Codification of the Civil Law in Israel” (1973) 3 Iyune Mishpat 5, 19–20.Google Scholar

18 In favour of this solution for the rules of private international law, see Angelescu, , “L'avant-projet de Code Civil roumain” (1933) Bull. Soc. de législ. comparée 179.Google Scholar

19 Ministry of Justice, Proposal for a Succession Law (Jerusalem, 1952), 155Google Scholar (apropos Chapter Seven on Private International Law): “This chapter includes two groups of provisions […] The second group of provisions has its place in the General Part of the Civil Code or in a special Law devoted to the principles of private international law”.

20 For reasons not to apply it to religious law, see Englard, , Religious Law in the Israel Legal System (Jerusalem, 1975) Ch. IV.Google Scholar

21 Fenét, , Recueil Complet des Travaux Préparatoires du Code Civil VI (Paris, 1827) 55 ff.Google Scholar

22 Cf. the appellations used in the Code Civil, the Italian Code, the Canon Code (“normae generales”), the Austrian Code (here the appellation refers to civil law in general), the Greek Code (“general principles”) etc. In Italy, whilst the name in the Code is “Provisions on law in general”, in common practice the short term preleggi (pre-laws) is used.

23 Following the example of the Introduction Law to the BGB.

24 Following the example of the Mejelle, the Prussian Code of 1794, the Austrian Code, the Swiss Code and others.

25 Following the example of the chapter preliminary to the Italian Codes of 1865 and of 1942, and of the Introduction to the Brazilian Code of 1916.

26 As has already been mentioned, supra n. 19.

27 Ibid. (supra n. 17) 17 ff.

28 See Tedeschi, G., Studies in Israel Law (Jerusalem, 1960) 144.Google Scholar

29 Kohn, op. cit.; Akzin, op. cit.

30 See Kohn's proposal, sec. 45 (commencement of the law), sec. 47 (international treaty as a part of domestic law); Akzin's proposal, sec. 10 (sources of law), sec. 11 (interpretation), sec. 12 (prohibition on any Law changing the legal situation in respect of a matter sub judice), sec. 13 (prohibition of retroactivity of certain laws), sec. 14 (publication of legislation commencement of law, ignorance of law).

31 Ibid., p. 18.

32 “A Law shall come into effect on the day of its publication in Reshumot unless it contains a contrary provision in this regard;…”

33 “A penal provision shall not come into effect in respect of an act committed before its publication”.

34 So also sec. 17(c) and sec. 21 (at end).

35 So also sec. 17 (a) and (b) and sec. 21 (commencement).

36 (1973) H.H. 1085.

37 See the examples given by Englard, op. ultim. cit., at 59–60.

38 For “renvoi” to custom in special provisions and the possible reasons therefor, see Tedeschi, , “Custom in Israel Law: Present and Future” (1973) 5 Mish-patim, 9, 10, 20.Google Scholar

39 Sec. 10 of the Interpretation Ordinance. In certain cases, the Israeli courts have in fact interpreted “from the day” as meaning “from the very moment”. See Segal v. Government of Israel (1977) (II) 31 P.D. 8, 18.

40 Cf. Akzin, op. cit., p. 34, sec. 14 (b): “Every law […] shall come into effect on the day following its publication in Reshumot […]”.

41 The official name of the publisher is “Distribution Service of Government Publications”, an unfortunate name regarding the publication of laws and judgments.

42 See Kohn, op. cit., sec. 77: “[…] The legislation of the State shall be based on the basic principles of Jewish law and these principles shall guide the courts in providing that which is wanting in existing laws”; Akzin, op. cit., sec. 10: “[…] The courts and tribunals of the State shall, in as far as they deem it proper, be assisted by the rules of Jewish law, present and past legal systems of other civilised countries, and particularly the Common law and the principles of Equity (as they have crystallised in England)”.

43 See Shiloh, op. cit., at 375 (“subject to expressly enacted provisions the civil courts shall give judgment in every matter within their jurisdiction according to Jewish law and the principles of justice preached by the Jewish prophets”); id., “Et Ceterum Genseo: Jewish Law Forthwith” (1971) 1 Iyune Mishpat 28; Elon, M., “Jewish Law and its Place in Israel Jurisprudence” (1971) 25 HaPraklit 51Google Scholar (reference “to the principles of Jewish law as far as these principles are apposite to the conditions of the country and the needs of its inhabitants”.

44 See also N. Bentwich, Attorney General in Palestine when the Palestine Order-in-Council was being drafted, cited in Tedeschi, Studies in Israel Law (op. cit. supra n. 28) 233.

45 Deut. 30:14.

46 Barak, op. cit. (supra n. 17) 17.

47 Tedeschi, “Custom in Israel Law: Present and Future” (supra n. 38) 35, 36.