¹ Palestine Order in Council, 1922, art. 46.

² Law and Administration Ord., 1948, sec. 11.

³ In Ayoub v. Farouqi (1941) 8 P.L.R. 116, 120, the Privy Council read into arts. 111–12 of the Ottoman Code of Civil Procedure the common law distinction between penalty and liquidated damages: “the Code must be construed in the light of the doctrines of English law.” And in Nofal v. A.G. (1936) 3 P.L.R. 221 the Palestine Supreme Court read into art. 170 of the Ottomn Penal Code the rule in McNaughton's Case. See Levy, Y. “The Treatment of Mentally-Sick Offenders…” (1966) 1 Is. L.R. 325, note 14.Google Scholar

⁴ A number of Mandatory enactments, such as the Bills of Exchange Ord. (see n. 7, below) and the Civil Wrongs Ord. (see p. 577 below), provided for their interpretation in the light of English law. Numerous other enactments inspired from English or Colonial models were interpreted according to English law as statutes in pari materia—see Miara v. Zimmerman (1926) 2 Rot. 708 and Harding v. Queensland Stamps Commissioners [1898] A.C. 769.

⁵ “The legal thinking of the legislator and of the draftsmen, perhaps also of the various exponents of the law, continues… to draw from English sources… dressed in Hebrew garb.”—Cheshin J. in Mituva v. Kazem (1952) 6 P.D. 4, 10. Sussman J. repeats this dictum, with minor changes, in Shalom v. Minister of the Interior (1956) 10 P.D. 1213, 1221, and in Lubin v. Municipality of Tel Aviv (1958) 12 P.D. 1041, 1077. In Bader v. Minister of the Interior (1953) 7 P.D. 366, 400, Agranat J. pointed out that even a manifestly Israeli enactment, like the Entry Into Israel Law, 1952, must be construed according to English canons because of the English rules of drafting followed by the legislature.

⁶ Private trusts were not received into Palestine (Eliash v. Director of Lands (1920–33) 1 P.L.R. 735) and part of the law of torts was introduced only in 1947 (London Society for Promoting Christianity Among the Jews v. Orr (1947) 14 P.L.R. 218) reversing a previous ruling (Sherman v. Danovitz (1940) 7 P.L.R. 363) that the English law of torts was inapplicable to the circumstances of Palestine and its inhabitants. The (1944) Civil Wrongs Ord., based on the English law of torts, also came in force in 1947. Until that year the inhabitants of Palestine had to make do with a most rudimentary law of torts providing for very scant remedies.

⁷ For example: The Bills of Exchange Ord., 1929, provides (sec. 2(2) ) that it should be interpreted “by reference to the law of England relating to bills of exchange… save in so far as it is inconsistent with the provisions hereof.” The common law requirement of consideration to support a guarantee on a bill was found inapplicable in Palestine (Palestine Mercantile Bank Ltd. v. Fryman (1938) 5 P.L.R. 159) but the doctrine that the release of the principal debtor discharges the guarantor (Mizrahi v. Shurek (1941) 8 P.L.R. 494) and that of contribution between co-guarantors (Fisher v. Gefen (1941) 8 P.L.R. 197) were applied.

⁸ Since the year 1948 about fifty volumes of official law reports of the Supreme Court have appeared.

⁹ Professor G. Tedeschi calls the reception of the doctrine “surreptitious”, as it is not mentioned in the Order in Council or in Mandatory legislation, and because it does not form part of the substantive law of England: “On the Principle of Stare Decisis” in Studies in Israel Law (Jerusalem, 1960, here referred to as Tedeschi, Studies) 114. For the view that the doctrine has no legal basis in the law of our country, see ibid. quotation at p. 134 and note 60, and see pp. 135–39 and passim.

¹⁰ See President Olshan's dictum in Yehoshua v. Appeals Committee (1955) 9 P.D. 617, 630; S.J., vol. 2, pp. 46, 64. Tedeschi, Studies, concludes (p. 150) that “[t]he decisions of the English courts—where they are not applicable as English law—are no more binding on our courts than Commonwealth decisions are binding on English courts.”

¹¹ The Mandatory Supreme Court gave contradictory replies (e.g. Issa v. Khammar (1937) 4 P.L.R. 21, 26; Shannir v. Chief Execution Officer (1947) 14 P.L.R. 260, 264; Municipal Corporation of Jerusalem v. Cattan (1938) 5 P.L.R. 488; cf. A.G. v. Herskovitch (1944) 11 P.L.R. 633) until the Privy Council, somewhat tardily, answered the question in the affirmative (Lipschitz v. Volero [1948] A.C. 1). The Supreme Court of Israel which, unlike its predecessor, is not subject to the overriding and corrective jurisdiction of the Privy Council decided, by a specially constituted Court of five Justices, that it was bound by its own decisions (Ramm v. Minister of Finance (1954) 8 P.D. 494) and demonstrated the validity of that decision by holding itself bound by it (Yehoshua v. Appeals Committee n. 10 above). By sec. 33(b) of the Courts Law, 1957, the Supreme Court is no longer bound by its own precedents, but the doctrine of precedents is retained for other courts by sec. 33(a), which provides that every court shall be guided by the precedents laid down by a superior court. See the semantic doubts raised by Dror, Y. as to the shade of meaning of “guided” in this context—”Some Recent Developments of the Doctrine of Precedent in Israel” in Scripta Hierosolymitana, vol. V, (Jerusalem, 1958) 228, 243, note 42Google Scholar; and by Tedeschi, (Studies, 144) regarding “precedent”.Google Scholar

¹² In Goldberg v. Ben Asher (1955) 9 P.D. 909, 915, Goitein J. opined that they are not binding.

¹³ In Eshed v. A.C. (1954) 8 P.D. 785, 796, the question was left open. Mr. Justice Silberg, in the minority opinion (p. 828), thought that they were not binding, a view he also maintained in Jakubovitz v. A.G. (1952) 6 P.D. 514, 564. See also Kohavi v. Becker (1957) 11 P.D. 225. In American Cyanamid Co. v. Lepetit S. p. A. (1962) 16 P.D. 788, 799, Cohn J. says: “English precedents have no binding force—at any rate those decided after the establishment of the State.” And he concludes that the inclusio of local precedents in sec. 33(a) of the Courts Law (n. 11 above) leads to the exclusio of English precedents.

¹⁴ See Tedeschi, , Studies, 134.Google Scholar Compare Rosenbaum v. Rosenbaum (1949) 2 P.D. 235, generally recognizing their authority, and Libman v. Lipschitz (1952) 6 P.D. 57, where Mandatory decisions were overruled. When not manifestly wrong “they are at least entitled to the benefit of the doubt”: Tenenbaum v. Hilman Ltd. (1954) 8 P.D. 1310, 1313, even though not fully approved by the Court: Kaufman v. Margines (1952) 6 P.D. 1005, 1031. See also A.G. v. Korngold (1951) 5 P.D. 250.

¹⁵ See Tedeschi, , Studies, 130.Google Scholar

¹⁶ See Tedeschi, Studies, 140 and at 139 the quotation from Ramm v. Minister of Finance.

¹⁷ See Professor Akzin's views mentioned in Tedeschi, Studies, 135 and note 63, and Tedeschi's own views, at pp. 164–65.

¹⁸ See articles mentioned in Tedeschi, Studies and in Y. Dror (cit. n. 11 above).

¹⁹ The discussions in the Knesset on the draft of sec. 33 of the Courts Law are considered in Tedeschi, Studies, 143–46 and, more fully, in Y. Dror (cit. n. 11 above), 228, 233.

²⁰ As distinct from the Scottish. See Burmah Oil Co. v. Lord Advocate [1964] 1 All E.R. 348, 350 ff.

²¹ Scant as compared with Israel; fruitful—e.g. The Gas Float Whitton (No. 2) (Owners) [1897] A.C. 337, 344; Castro v. R. (1881) 6 A.C. 229 H.L. 245, 249; Scruttons Ltd. v. Midland Silicones Ltd. [1962] A.C. 446, 471, 495, and other cases mentioned below.

²² See Gorney, U., “American Precedent in the Supreme Court of Israel” (1954–55) 68 Hvd. L.R. 1194, 1210.Google Scholar

²³ Silvester v. A.G. (1948) 1 P.D. 5.

²⁴ In fact at third hand: Phillips v. Eyre (1870) L.R. 6 Q.B. 1, quoting Kent's Com. (10th ed.) which mentions the American case Calder v. Bull, 3 Dal. 389. Other American authorities quoted in the Silvester Case: Hyde, International Law Chiefly as Applied and Interpreted by the United States, and Ex parte Quirin (1942, 317 U.S. 1) quoted in the Nuremberg Judgments (Cmd. 6964).

Another oblique American quotation occurs in Zarka v. A.G. (1950) 4 P.D. 504, 526, quoting Woolmington v. D.P.P. [1935] A.C. 462, as referring to R. v. Stoddard (1909) 2 CR. A.R. at p. 238, mentioning the American case of The State v. Brady (la. 1902).

²⁵ See Halsbury's Laws of England (Simonds ed. XX, 804–5, note (ƒ), and see Lord Hodson's speech in Myers v. D.P.P. [1964] 2 All E.R. 881, 899–900.

²⁶ Compare the following dicta: “Needless to say, the law and customs of the United States do not bind the courts in this country. But in so far as legal concepts and institutions were taken from England and planted in that country, particular interest attaches to what was said and written by exponents of American law concerning those concepts and institutions.” (Cheshin, J. in Weissfisch v. Prisons Officer (1951–1952) 5 P.D. 1083, 1089)—withGoogle Scholar: “…we have the advantage of the assistance afforded to us by the decisions of the American Courts and the opinions of American jurists.…And, although the decisions of the American Courts are of course not binding on us, yet the sound and enlightened view of American lawyers in the administration and development of the law—a law except so far as altered by statutory enactment, derived from a common source with our own—entitle their decisions to the utmost respect and confidence on our part.” (Cockburn, C. J. in Scaramanga v. Stamp (1880) 5 C.P.D. 295, 303).Google Scholar

²⁷ For example, on choice of law relating to the jurisdiction of the Court, Cohn J. points out the different rules laid down in England (and also in Scotland) and in America, and guides himself by the English rule (Union Insurance Co. v. Moshe (1963) 17 P.D. 646). In another case Goitein J., after reviewing the diverging English and American authorities on the presumption as to foreign law, follows the English cases, since “in the light of art. 46 of the Palestine Order in Council we have to follow the rule as it applies in England, because it is part of the common law.” (Pacific Mediterranean Line & c. S.A. v. Israel Industries Ltd. (1955) 9 P.D. 1779, 1788).

²⁸ E.g. in A.G. v. Alexandrowitz (1957) 11 P.D. 695, 703, where the American restrictive construction of delegated powers of legislation was not followed. In England, see Carl-Zeiss-Stiftung v. Raymer (No. 2) [1966] 2 All E.R. 536, 548–49. As more and more cases with American references are reported a self-accelerating effect results when those cases are quoted to or by the Court in other proceedings, thus adding to the statistics of local cases with an American bent. Another reciprocat ing cause for quotations lies in the annotations which, since the year 1961, appear in the official law reports and which draw abundantly from American sources.

²⁹ See n. 25. There may be “triple lacunae”, as in David v. Municipality of Tel Aviv (1962) 16 P.D. 648, 656, where, on a question of payment made under a mistake of law, there was found to be no clear ruling even in the United States.

³⁰ (1950) 4 P.D. 5; S.J. vol. 1, pp. 299, 312.

³¹ The note reads in part: “American decisions are often of special value, owing to their elaboration of discussions and their exposition of the common law, to which they not rarely adhere with much rigidity.”

³² (1959) 13 P.D. 1788, 1792.

³³ Chalmers opines that “probably the same would be held in England.” (Bills of Exchange, 12th ed. 94). On the use of American precedents in bills of exchange cases in England, see id. 9th ed. (1927) Introduction. In Israel see also Slutzky v. “Amidar” Co. Ltd. (1960) 14 P.D. 2373 (incomplete bill); Noy v. Municipality of Hadera (1958) 12 P.D. 353 (signature by a local authority); Gvisky v. Meir (1962) 16 P.D. 595 (knowledge which does not vitiate holding in due course).

³⁴ (1952) 6 P.D. 922, 929 ff.: S.J., vol. 1, pp. 269, 276 ff. The Court points out that leading English jurists follow the American view.

³⁵ In Anonymous v. A.G. (1959) 13 P.D. 1205.

³⁶ At p. 1208.

³⁷ The Common Law, 1, quoted in England in the case of Read v. Lyons & Sons Ltd.[1946] 2 All E.R. 471, 478, and in Israel in Eichmann v. A.G. (1963) 17 P.D. 2033, 2051 and also in Kaufman v. Margines (1952) 6 P.D. 1005, 1032.

³⁸ A.G. v. Gruenwald (1958) 12 P.D. 2017, 2083, quoting from Brown v. U.S.(1921). Other quotations: Even v. Assessing Officer (1960) 14 P.D. 1308, 1309, in income tax assessments the defendant, when called upon to explain the source of his increased wealth “remains quiet at his peril.” (From Holland v. U.S., 75 S.Ct. 127 (1954); Gold v. Minister of the Interior (1962) 16 P.D. 1846, 1856, on the presumption of innocence: “Some modern law-writers and courts have expended, or wasted, a vast amount of learning without shedding upon this question any appreciable degree of light.” (From Ohlson v. Sac Co. F. M. F. Insurance Association, 191 Ca. 479 (1921) ).

³⁹ E.g.: “Counsel for the defendant referred to decisions which are not binding on this court. One of them states the position, perhaps, more clearly than the English authorities do. That is Liston v. Brown, a case decided in the State of Indiana, in the United States of America.” (Singleton, L.J., in Biberfeld v. Berens [1952] 2 All E.R. 237Google Scholar, 241–42). And Lord Atkin's reference to “the illuminating judgment of Cardozo, J.,…in which he states the principles of the law as I should desire to state them.” Donoghue v. Stevenson [1932] A.C. 562, 598.

⁴⁰ Graceful tribute is also paid to Chief Justice Cardozo in Brown v. Morgan [1952] 2 All E.R. 1007, 1009 and again on appeal [1953] 1 All E.R. 849, 856. For reliance on Justice Holmes, see D.P.P. v. Smith [1960] 3 All E.R. 161, 167 and in Israel inter alia A.G. v. Ohana (1954) 8 P.D. 92, 105.

⁴¹ For example, on the nature of an acceptance of a bill of exchange, whether it is probative or constitutive, American decisions retain the pristine common law, now codified both in England and in Israel. (Atlas Travel Services Ltd. v. Hiterman (1961) 15 P.D. 793, 803). Compare Lord Atkin in Donoghue v. Stevenson (cit.) 598: “It is always a satisfaction to an English lawyer to be able to test his application of fundamental principles of the common law by the development of the same doctrines by the lawyers of the Courts of the United States.” In Schlesinger v. Minister of the Interior (1963) 17 P.D. 225, 253, Sussman J. follows the American rule on choice of jurisdiction: “Not only is the American rule more practical and more useful…but American practice is in fact the practice of the common law.” Although English courts, relying on American judges and commentators, follow the same rule, it has not been tested in the House of Lords. Sussman J. adds: “If English courts do so, why should we not follow their example in drawing inspiration from the common law outside England?” Compare, in England, Greer, L.J. in Haynes v. G. Harwood & Son [1935] 1 K.B. 146, 156–57Google Scholar, on volenti non fit injuria: “On this [question] there is very little actual authority in this country and no actual decisions of the Court of Appeal.… There is, however, a wealth of authority in the United States.… The effect of the American cases is, I think, accurately stated by Professor Goodhart's article. ‘Rescue and Voluntary Assumption of Risk’ in Cambridge Law Journal, vol. v., p. 192.…In my judgment, that passage not only represents the law in the United States but I think it also accurately represents the law of this country.” And see n. 31 above.

“American law… so far as it is unaffected by local legislation, is not seriously out of line with the common law as it stands in England.” Pound, Roscoe, “The Development of American Law and its Deviation from English Law” (1951) 67 L.Q.R. 49, 52.Google Scholar

⁴² Criminal Code Ord., 1936, sec. 117(2).

⁴³ In Bar-Lev v. A.G. (1963) 17 P.D. 2791, 2794–95.

⁴⁴ Heruti v. Shubes (1964) 18 P.D. 403, 408, 411. See quotation from sec. 2(2) of the Bills of Exchange Ord., n. 7 above.

⁴⁵ And also because it ran counter a line of local Mandatory and Israeli decisions following English law: Greidel v. Horowitz (1957) 11 P.D. 57. See also the case of Farkash v. Oni (1962) 16 P.D. 1933, Barak's, A. note on the case in “L'Enfant Terrible of the Law—the Child Trespasser” (1966) 1 Is. L.R. 157Google Scholar and Cohn J.'s unsuccessful attempt to introduce the American rule, pp. 1939–40 of the report (minority opinion).

⁴⁶ In Kiriaty v. A.G. (1964) vol. 3, 18 P.D. 477, turning on the admissibility of a confession. Compare, in England, Re United Railways of the Havana and Regla Warehouses, Ltd. [1960] 2 All E.R. 332, 343, where the House of Lords refused to be guided by a judgment of the Supreme Court of the United States (Deutsche Bank Filiale Nurenberg v. Humphrey (1926) 272 U.S. Rep. 517) dealing with the calculation of rates of conversion. Viscount Simonds: “Any judgment of that court will be regarded with respect in this House.… But I do not find in the judgment persuasive authority which would justify your Lordships in adopting a rule which has so long been rejected in the courts of this country.”

“More than a tenuous hold”—cf. n. 86 in fine.

⁴⁷ The latter view is expressed in Halsbury's Laws of England (Simonds ed. XX, 804–05, note (f) )—”…the decisions of courts of the United States of America are not authorities at all in English courts”, whilst the jurists' attitude, regarding persuasive precedents generally, is best stated by Allen, C. K.: “…of recent years various American and Dominion decisions have been examined and followed with such respect that it is little more than a fiction to say that they are not regarded as ‘authorities’.” (Law in the Making 6th ed. 261).Google Scholar See also Glanville Williams n. 98 below.

⁴⁸ On which Berinson J. relies in a case of appropriation of payments on account of interest, as being “a correct and clear summary of the rule in England”.(Ihezk'eli v. Chief Execution Officer (1955) 9 P.D. 1617, 1623.)

⁴⁹ On which Cohn J. relies, on a question of res judicata, because it brings out the English rule “more clearly”. (Volovelsky Centre Ltd. v. Custodian of Abandoned Property (1962) 16 P.D. 2156, 2166.)

⁵⁰ Such as, in a case of diminished liability, the fact that in both instances advantage had been taken of the accused's superstition. (Grama v. A.G. (1963) 9 P.D. 1345, 1349.) See also, on the propriety of interviewing witnesses before trial, the parallel drawn by the Court with an American case, where the facts were similar, in Aloufi v. A.G. (1955) 9 P.D. 1345, 1349.

⁵¹ On an issue involving devaluation the facts in the American cases were found to “resemble to a considerable extent the case before us”.—Jerusalem Development Co.Ltd. v. A.G. (1959) 13 P.D. 819, 830.

⁵² Behar v. A.G. (1952) 6 P.D. 415, 417—American case quoted “in connection with the very argument before us”.

⁵³ E.g.: Yarmitsky v. Meiri (1959) 13 P.D. 1498, a case concerning res judicata. See “Res Judicata…” above 539 at 541–42, 549, note 43.

⁵⁴ E.g.: “It may be pointed out at this stage—not by way of authority but merely as an interesting historical fact—that a question very similar to that before us, was brought up as early as the year 1879, before the Supreme Court of the United States.”—Melahem v. Sher'i Judge (1954) 8 P.D. 910, 914. And see n. 26 above.

⁵⁵ Such as regarding the capitalization of damages (Weizman v. Zucker (1954) 8 P.D. 1412, 1427) or on the question of penal interest (Otsar LeAshrai &c. Ltd. v. Assessing Officer (1961) 15 P.D. 2213, 2219).

⁵⁶ “[I]n modern Continental law the emphasis is not on the individual case in particular, but rather on a series or group of cases creating a practice.” Goodhart, A. L., “Precedent in English and Continental Law” (1934) 50 L.Q.R. 40, 42.Google Scholar

⁵⁷ “[A] rule established by the binding authority of an individual case.” Ibid., 43.

⁵⁸ See n. 98 below.

⁵⁹ Cf. Eliash v. Director of Lands, n. 6 above.

⁶⁰ (1957) 11 P.D. 925.

⁶¹ Aboudi v. Minister of Religion (1960) 14 P.D. 2045.

⁶² Fifty-three American cases were quoted in the judgment of Deputy President Agranat.

⁶³ In a later case Berinson J. reiterated his former view, while partly agreeing with the Deputy President's comparison of English and American law. (Shoshani v. Municipal Corporation of Jerusalem (1962) 16 P.D. 2117).

⁶⁴ “[T]he widest departure of American law from English law is in constitutional law. But in this departure Americans have been thoroughly English.” Roscoe Pound, cit.,n. 41 above. For citation of American law on a constitutional issue, by an English court, see Liyanage v. R. [1966] 1 All E.R. 650, 660.

⁶⁵ See Jabotinsky v. Weizmann (1951) 5 P.D. 801; S.J. vol. 1, p. 75. Witkon, A. discusses the constitutional aspects of the case in “Justiciability” (1966) 1 Is. L.R. 40.Google Scholar The American references are emphasized by U. Gorney in “American Precedent in the Supreme Court of Israel” (n. 22 above). The latter also deals with the reliance on American precedents in cases involving freedom of speech. See also Harnon, E., “Free Speech in Matters which are Sub Judice” (1966) 1 Is. L.R. 151.Google Scholar Although written twelve years ago, before the full development of the American influence in the Supreme Court, Gorney in his article prophesized “a development which, though of recent origin, is bound to continue.”

⁶⁶ See Gorney, cit. In England, cf. Oliver v. Buttigieg [1966] 2 All E.R. 459.

⁶⁷ Zeev v. A/District Commissioner (1948) 1 P.D. 85; S.J., vol. 1, pp. 85, 72: “It gives expression to the vision of the people and its faith, but it contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal.” See Kol Ha'am v. Minister of the Interior (1953) 7 P.D. 871; S.J., vol. 1, p. 90. See Gorney, , cit., 1196–97.Google Scholar The case does not single out American precedents as being more relevant to the issue, but deals with “this Anglo-American understanding” of the question.

⁶⁸ N. 65 above, S.J., vol. 1, at p. 87.

⁶⁹ In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 125, 150 (1951).

⁷⁰ Kohavi v. Becker (1957) 11 P.D. 225, 238. In Yosifof v. A.G. (1951) 5 P.D. 481, 503, Silberg J. deals with discrimination in the light of American precedents. Kister J. does so in A.G. v. Mazan (1965) vol. 3, 19 P.D., 32 at 46–47.

⁷¹ See Griswold, E. N., Law and Lawyers in the United States (1964) 101–02.Google Scholar

⁷² Jabotinsky v. Weizmann (n. 65 above) 1 S.J. at p. 83, and see Reuben v. Chamber of Advocates (1951) 5 P.D. 737; Matana v. A.G. (1960) 14 P.D. 970, 974–76; A.G. v. Matana (F.H.) (1962) 16 P.D. 430; HaHevra HaDeromit B.M. v. Supreme Rabbinical Council (1964) vol. 2, 18 P.D. 324, 332.

⁷³ (1963) 17 P.D. 1319, 1332.

⁷⁴ (1852) 5 Cox, C.C. 523.

⁷⁵ Yassin v. A.G. (1963) 17 P.D. 1514.

⁷⁶ See “Mador” Building & Finance Ltd. v. Bick (1951) 5 P.D. 792, 799. American Law was followed in Knopf v. Popper (1956) 10 P.D. 785, 791–92, holding that there is no res judicata on a matter not raised on appeal.

⁷⁷ (1965) vol. 1, 19 P.D. 429. The case is noted in (1966) 1 Is. L.R. 501.

⁷⁸ In addition to this broad approach on principles, the Court also found a more technical solution, based on the mischief which the relevant enactments (sec. 152(3) of the Criminal Code Ord. and sec. 24 of the Civil Wrongs Ord.) were intended to remedy. In Futher Proceedings in this case (Abautbaul v. Kleiger (1966) vol. 1, 20 P.D. 561) Halevy J. relied, in upholding the former judgment, on a divergence between the respective American and Israeli statutes. See above p. 569.

In Ozer v. A.G. (1965) vol. 4, 19 P.D. 31, Berinson J. tried to further the cause of mercy by advocating, in a minority opinion, the adoption and extension of the more liberal view as to the time within which an application for mitigation of sentence may be entertained by the sentencing court.

⁷⁹ Svitsky v. Minister of Finance (1965) vol. 2, 19 P.D. 369 at 378 ff.

⁸⁰ “[I]t is unquestionably a rule that what may be called the parliamentary history of an enactment is not admissible to explain its meaning.” Maxwell, , Interpretation of Statutes (1962, 11th ed.) 26.Google Scholar

⁸¹ See U.S. v. Howell Electric Motors Co. (1948) quoted in Svitsky's case, n. 80 above, and see Curtis, C. P., “A Better Theory of Legal Interpretation” in Jurisprudence in Action (New York, 1953).Google Scholar

⁸² Mizan v. A.G. (1957) 11 P.D. 769, 772.

⁸³ Such as the Eichmann Case (1962) 16 P.D. 2033.

⁸⁴ Yeridor v. Returning Officer (1965) vol. 3, 19 P.D. 365.

⁸⁵ Rash v. A.G. (1965) vol. 3, 19 P.D. 421.

⁸⁶ “[X]he rule of adherence to precedent is applied with less rigidity in the United States than in England, and, I think, with a rigidity that is diminishing even here.” Cardozo, , The Nature of the Judicial Process (1960 ed., 158).Google Scholar Does not this American variation of the doctrine amount to its abandonment? Cf. Goodhart, , Essays in Jurisprudence and the Common Law (1931) chap. 3. Cp. Lord Gardiner L.C.'s statement reported in [1966] 3 All E.R. 77.Google Scholar

⁸⁷ (1957) 11 P.D. 225.

⁸⁸ (1952) 6 P.D. 1242.

⁸⁹ [1949] 1 All E.R. 684.

⁹⁰ [1955] 3 All E.R. 796.

⁹¹ N. 11 above.

⁹² At p. 239.

⁹³ (1831) Peters U.S. 264, 280. (8L. ed. 120). The full quotation includes the following words which echo English judges' dicta (see e.g. n. 26 above) regarding the authority of American precedents, by attributing to English cases given after the secession, with similar courtesy, no more than persuasive authority: “however we may respect subsequent decisions, and certainly they are entitled to great respect, we do not admit their absolute authority.” And see Tedeschi as quoted in n. 10 above.

⁹⁴ The late Z. S. Cheshin.

⁹⁵ And yet it is some of the remaining Justices of the Supreme Court who lean more heavily on American precedents.

⁹⁶ As regards the bar, the profession is not divided in Israel and in America as it is in England, between barristers and solicitors; unlike in England, lawyers in Israel and in America must go through a University. The proportion of practising lawyers to the population of Israel compares with American figures and differs from the position in England. (See Megarry, R. E., Lawyer and Litigant in England (1962) 7).Google Scholar The recent establishment of a bar in Israel is closer to the example of certain American States than the voluntary associations of the Inns of Court or the Law Society. (See Griswold, E. N., Law and Lawyers in the United States (1964) 29).Google Scholar The forensic dress of Israeli lawyers and judges, the very furnishings of the courtrooms, remind one of America more than of England. In a number of cases dealing with the exercise and the ethics of the profession the Court guided itself by American practice: Anonymous v. Chamber of Advocates (1956) 10 P.D. 789 (improper conduct not connected with the exercise of the profession) ; Anonymousv. Chamber of Advocates (1957) 11 P.D. 533 (measure of punishment); Rabbi Pollak v. Rabbi Herzog (1955) 9 P.D. 155 (right of audience). And see the Chief Justice's suggestion, as “food for thought” to consider a canon of professional ethics proposed in 1958 in America. (Reported in Yedi'on, organ of the Israel Bar, No. 16, of April, 1966, pp. 6–7 (in Hebrew) ). A recent innovation is the introduction in Israel of pre-trial conferences, similar to American practice.

⁹⁷ See Dorsen, N., “Law Clerks in Appellate Courts in the United States of America” (1963) 26 Mod. L.R. 265.CrossRefGoogle Scholar

⁹⁸ Glanville William's following remarks may be applied to the Supreme Court of Israel, where extensive use is made of British and American juridical literature: “Opinions of the Supreme Court of the United States make frequently explicit reference to the contributions of the Professors of Law, of whom in the United States there is an exceedingly large number, and treat their views with respect.” “Constructive Malice Revived” (1960) 23 Mod. L.R. 605, 612. And see Y. Dror, cit. n. 11 above, p. 231, note 13.

⁹⁹ Cf. Megarry, cit. 119.

¹⁰⁰ See Akzin, B., “Codification in a New State: A Case Study of Israel” (1956) 5 Am. J. Comp. L. 44.CrossRefGoogle Scholar

¹⁰¹ And on a lower level there is the American influence introduced by the cinema and the proliferating popular fiction.

¹⁰² N. 87.

¹⁰³ See Gorney, cit., 1194.

¹⁰⁴ Donoghue v. Stevenson, cit. (n. 39 above) 576.