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I. Introduction

The citation of foreign law by Israeli courts is relatively common.  The scope and purpose of such citation, however, has changed over the years.  Until repealed in 1980, a statutory 1922 British Mandate requirement to apply English common law and equity when Israeli law was silent was part of the existing law.  Following its repeal, the reference to English law, much like references to the laws of other countries, became merely optional.  Even before its repeal, the requirement that English law be imported into the Israeli system had not been implemented by Israeli judges, who viewed the conditions arising from the state’s independence in 1948 as justifying deviation from English law based on the exception recognized in the original 1922 law for different circumstances of the country and its inhabitants.   

While Israeli judges are under no obligation to apply or consider the law of England or any other country in analyzing Israeli law, a review of Israeli court decisions indicates that comparative law is frequently cited by the courts.  References to the laws of the United States, the United Kingdom, Canada and Australia are said to be commonplace, as are references to the laws of Continental Europe (primarily German, French and Italian laws).[1] 

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II. Historical Background

The State of Israel occupies part of the territory of Palestine.  Prior to 1948, this territory included areas currently belonging to Israel, Jordan, the West Bank, and Gaza.  Palestine was carved out of the Ottoman Empire after World War I and entrusted to Great Britain as a mandated territory by the League of Nations.  In accordance with the British Mandate’s art. 46 of the Palestine Order in Council 1922, domestic courts were instructed to exercise the Ottoman Law in force in Palestine on November 1, 1914, as well as orders in council, ordinances, and regulations imposed by the British authorities.  Where no law existed on a particular matter (lacuna), courts were instructed to exercise their jurisdiction:  

...in conformity with the substance of the common law and the doctrines of equity in force in England. … Provided always that the said common law and doctrines of equity shall be in force in Palestine so far only as the circumstances of Palestine and its inhabitants and the limits of His Majesty’s jurisdiction permit and subject to such qualifications as local circumstances render necessary.[[2]

Following the establishment of the State of Israel, art. 11 of the Law and Administration Ordinance 1948[3] continued the application of the then existing law, subject to necessary modifications that might have resulted from the establishment of the State and its authorities.  

In 1980, the link to English common law and doctrines of equity contained in Article 46, cited above, was repealed by Foundation of Law, 5740-1980,[4] section 1 of which stated, “[W]here the court, faced with a legal question requiring a decision, finds no answer to it in statute law or case law or by analogy, it shall decide it in the light of the principles of freedom, justice, equity and peace of Israel’s heritage.”[5]  

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III. Impact of Israel’s Heritage as Compared with Foreign Law

 

According to judicial interpretation, the above cited provision of the Foundation of Law, 5740-1980[6] recognizes specific principles of Israel’s heritage, including freedom, justice, equity and peace, rather than general Jewish law, as a source for judicial decisions when there is no relevant law either in a statute, in case law, or by analogy.[7] 

A 1980 decision of the Israeli Supreme Court demonstrates the Court’s approach.  Supreme Court President Aharon Barak rejected Jewish law as a basis for the interpretation of the right of a finder under the Israeli legislation of the Restoration of Lost Property Law, 5733-1973.[8]  He held that Jewish law is not a source of law in the State of Israel, but that it can be used for judicial inspiration for comparison purposes.  Comparative law, in the court’s view, is useful “when the legal institutions that are being compared are compatible, in that they are based on mutual basic assumptions and are designed to obtain mutual goals.”[9]  Justice Barak determined that the position of Jewish law in that case was irrelevant for the interpretation of Israeli legislation because of its focus on rewarding the finder for guarding a lost item if the original owner is not found, rather than on preservation of the original ownership.[10] 

In addition to obtaining inspiration by resorting to Jewish law principles, Israeli courts make frequent references to foreign law.  This practice, in fact, seems to be more common than referring to Jewish law sources.  In a 1984 decision, the Supreme Court expressly recognized that it may review court decisions from the United States or other foreign countries “that apply legal provisions similar to ours, for determination of our own views… for understanding similar legal provisions….”[11]  The reference is made for the purpose of comparison and has no binding effect.  

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IV. The Impact of Foreign Law on Domestic Judgments

 

Justice Barak actively promoted the use of comparative law in judicial lawmaking.  In addition to writing numerous leading decisions on human rights and other significant constitutional principles, Barak has been a prolific writer and academic.  In his 2006 book, The Judge in a Democracy, he expressed his support for the use of comparative law in adjudication.  He stated that as a judge he was greatly assisted by case law from the courts of the United States, Australia, Canada, the United Kingdom and Germany.  In his view, “comparing oneself to others allows for greater self-knowledge. … A useful comparison can exist only if the legal systems have a common ideological basis.”[12] 

Barak listed the following three types of assistance that can be derived from the use of comparative law:

(1) Interpretive Theory—“Comparative law helps the judge better understand the role of interpretation and of judicial making.  Before judges decide their own position on the issue, they would do well to consider how other legal systems treat the question.”[13] 

(2) Finding Democracy’s Fundamental Values—“Democracies share common fundamental values. Democracy must infringe certain fundamental values in order to maintain others.  It is important for judges to know how foreign law treats this question and what techniques it uses.”[14] 

(3)  Comparative Law Solutions to Specific Situations—Barak stated that he was not advocating for the adoption of foreign arrangements but for an “open approach, one which recognizes that for all our singularity, we are not alone.  That recognition will enrich our own legal systems if we take the trouble to understand how others respond in situations similar to those we encounter.”[15]

Comparative law is used in Israel to interpret statutes as well as constitutional issues.  Although Israel does not have a written constitution contained in one document, it has eleven basic laws, two of which have express provisions granting them higher normative value than regular laws.  The Supreme Court, based on its interpretation of the Declaration of Independence, has developed additional constitutional principles.[16] The following will address the use of comparative law in constitutional interpretation. 

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V. Comparative Law and Constitutional Interpretation

 

The citation of foreign constitutions in Israeli constitutional interpretation appears frequently in decisions of the Supreme Court.  Court President Shamgar, however, in a 1995 leading decision, expressed a cautionary note:  

[B]ut it should be understood that the consideration of other constitutions and their implementation is merely comparative.  Every constitution reflects in the protections of rights that are granted therein the social order of priorities that is unique to it and the outlooks that have been adopted in its society.  It need not be added that there is also a whole range of political considerations that accompanies the formulation of a constitution.  Thus, for example, in Canada it was decided not to include a prohibition against the violation of property in the Charter of Rights.[17] 

The citation of foreign law by the Supreme Court in interpreting the following two major issues under Israeli constitutional law exemplifies its approach to comparative law analogies. 

A. Environmental Law

A 2004 decision of the Supreme Court in a petition regarding environmental rights further explains the role of comparative law in interpreting Israeli law.  While noting that some countries recognize the existence of a constitutional right to an environment that is not harmful to health or well-being, the court recognized that other countries do not award such high normative status to environmental rights.  Rather, the Court observed that many countries maintain comprehensive legislation regarding various aspects of environmental protection.[18] 

The Court went on to state:

In comparative law there is much discussion of the environment.  Many laws addressing the environment have been enacted in many countries … sometimes the environment has been given a constitutional status.  In a large number of constitutions, a constitutional right to have a suitable environment has been recognized.[[19]]

This comparative law—whether in the international sphere or in the national sphere—is of great importance.  Nonetheless, each country has its own problems.  Even if the basic considerations are similar, the balance between them reflects the uniqueness of every society and what characterizes its legal arrangements.  Indeed, this is the power and these are the limits of comparative law.  Its power lies in extending the interpretational horizon and field of vision.  Its power lies in guiding the interpreter with regard to the normative potential inherent in the legal system.  Its limits lie in the uniqueness of every legal system, its institutions, the ideology that characterizes it and the manner in which it deals with the individual and society.  Indeed, comparative law is like an experienced friend.  It is desirable to hear his good advice, but this should not replace one’s own decision.[[20]]

After reviewing Israeli law on the issue, Barak determined that the provisions challenged in the petition did not violate any constitutional rights under Israeli law, including the constitutional right to human dignity and liberty.[21]  The Court held, however, that there had not been a sufficient passage of time to allow for the preparation of guidelines for reviewing environmental impact under the contested provisions, and that the deadline for preparation of the guidelines must be extended in specific cases where such extension is clearly needed.[22] 

B. Immigration, Unification of Families, and Public Security

A leading decision on the constitutionality of temporary legislation exemplifies the significant usage of comparative law by Israeli courts in constitutional interpretation.  The legislation at issue restricted residents of the West Bank and Gaza between the ages of fourteen and thirty-five (for men) or twenty-five (for women) from relocating into Israeli territory based on marriage to Israeli citizens.[23]  

The decision in this very sensitive case was a few hundred pages long, and was rendered by an extended bench of eleven justices.  In addition to citing Israeli legislation, 183 Israeli court decisions, and two Jewish law sources, the justices cited foreign court decisions from the following countries: 

  • United States–30;  
  • Australia–1; 
  • Canadian–9;  
  • England–6; 
  • European Court of Human Rights–6; 
  • Ireland–1; and 
  • South Africa–3.  

The challenged legislation had been enacted during the height of a wave of terror attacks within Israel’s borders, some perpetrated by Palestinian residents of these territories in the second intifada (uprising) commencing in September 2000.  In response to the intensity of these attacks the Knesset (Israeli Parliament) enacted legislation in the form of the Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003.[24]  The law was initially valid for one year, and was extended several times.  The Court observed: 

Because some of the terror attacks were perpetrated with the assistance of persons who were originally Palestinians living in the occupied territories and had received permission to live in Israel within the framework of family reunifications, the government decided in 2002 to stop giving permits to Palestinians from the occupied territories to live in Israel.[[25]]

The constitutionality of the legislation was questioned in thirty-three petitions submitted by both individuals and human rights organizations.  The united petitions requested the Supreme Court, sitting as a High Court of Justice, to consider whether the blanket prohibition of family reunification (with Palestinians of certain ages) violated constitutional rights, and if so, whether the violation of those rights complied with the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty,[26] and was therefore constitutional.  Prior to the blanket prohibition in the law, applications of Palestinians to live in Israel were considered on an individual basis, with a view to whether the applicant presented a risk to the security and safety of the Israeli public.  An extended bench of eleven justices, by a majority of six to five, denied the petitions.  

A minority opinion by Justice Barak included a review of legal arrangements in foreign countries, in the European Union, and under international law to support a conclusion that the right to family life is anchored in the right to dignity, which is guaranteed under Israel’s Basic Law: Human Dignity and Liberty.  The six justices of the majority rejected this conclusion.  While agreeing that comparative law has great significance in both national and international spheres, Justice Cheshin cautioned that in the instant matter comparative law must be used in a sensitive and careful way. In his opinion, Israel, similar to other countries around the world, does not recognize an individual constitutional right to have foreign members of a person’s family immigrate into the country.  He stated: 

The attitude of each state to immigration arrangements—including immigration arrangements by virtue of the right to marry and to family life—originates not only in the legal system and its characteristics in each different place but also, mainly, in the reality with which the state is required to contend.  It is therefore not surprising that the countries of the world have adopted and continue to adopt, each for itself, arrangements that are suited to its needs from time to time, and moreover they tend to change from time to time the immigration arrangements prevailing in them according to the reality—a changing reality—with which the state is required to contend. See the remarks that we cited above … with regard to the position prevailing in the United States and changes in immigration arrangements in that country[.][[27]

In rejecting Justice Barak’s analogy to the laws of other countries, Justice Cheshin noted that none of the referenced countries ever contended with a reality similar to that with which Israel was contending.  The Justice stated that there existed “a time of armed conflict — a time of quasi-war,”[28] between Israel and the Palestinian Authority and the Hamas organization that controlled it.  Justice Cheshin concluded that the analogy to the laws of other countries was wrong, due to the existence of the state of armed conflict and the general hostile attitude of the population in the territory of the Palestinian Authority.  He asked, “Is there any other country that is being asked to allow in its territory the establishment of a family unit in which one of its members is an enemy national?”[29]  

It is interesting to note that in this case both the majority and minority opinions of the court cited international law to support their opposing positions.  While the minority cited international human rights law to support the view that human rights include the right to family reunification, the majority cited the international law of armed conflict to support the position that enemy nationals do not have a right to relocate into the territory of a state during armed conflict, even for the purpose of marriage, based on considerations of public and state security.[30]  In the absence of domestic legislation, international law does not form part of Israeli domestic law and references to it in this case, similarly to those references to foreign law, were made merely for the purpose of analogy and not for implementation per se.  

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VI. Concluding Remarks 

Comparative law is heavily used by Israeli judges.  Decisions of the Israeli Supreme Court are especially indicative of such use.  An American scholar has opined “that it (the Court) is the most important comparative constitutional law institute of the world.”[31]  

Having inherited the British stare decisis system of respecting domestic court decisions, combined with the historical legal influences of Ottoman, Continental European, and English law, Israel seems to be naturally receptive to the use of comparative law in domestic decisions.  This background, together with the diverse origins of judges and jurists in the early days of the State’s independence, may explain the Court’s openness towards comparative law.[32]  

The current ability of the Court to retrieve and analyze foreign law from numerous foreign countries is said to partly “stem from the Court’s practice of employing clerks from all over the world, who do the research work on their country of origin.”[33]  The Supreme Court of Israel actively recruits foreign clerks. The Court’s website explains: 

Unlike many common law systems that have a long, rich, and plentiful jurisprudence from which to draw upon, the State of Israel, a relatively young country, has a comparatively small body of jurisprudence.  Thus, the Israeli Supreme Court often looks to American and Commonwealth precedent, as well as European countries, for inspiration in rendering its decisions. As a result, Justices of the Israeli Supreme Court solicit individuals trained in the American and Commonwealth legal tradition, as well as European traditions, to work as Foreign Clerks.[[34]

The Israeli law doctrines discussed above have enabled the Court to encourage the consideration of foreign law.  

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Prepared by Ruth Levush
Senior Foreign Law Specialist

March 2010
 

[1] Aharon Barak, Comparison in Public Law, in Judicial Recourse to Foreign Law 287, 292 (Sir Basil Markesinis & Professor Jörg Fedtke eds., UCL Press 2006).  

[2] 3 The Laws of Palestine 2580 (rev. ed. 1933), Statutory Rules and Orders 362 (London, 1923).  

[3] 1 Laws of the State of Israel (LSI) 7 (5708-1948). 

[4] Foundation of Law, 5740-1980, 34 LSI 181 (5740-1979/80). 

[5] Id.  

[6] Foundation of Law, 5740-1980, 34 LSI 181 (5740-1979/80). 

[7] Aharon Barak, 1 Interpretation in Law 528-32 (Nevo Publishing, 1992). 

[8] Restoration of Lost Property Law, 5733-1973, 27 LSI 187 (1972/73). 

[9] Civil Appeal 546/78 Bank Kupat Am Ltd. v. Eliezer Handles, 34(3) Piske Din  (P.D.) 57 (1980). 

[10] Id.  

[11] Special Hearing 29-30/84 Kosoi v. Bank Foichtunger, 38(4) Piske Din (Decisions of the Supreme Court) 505 (5745-1984). 

[12] Reproduced in Barak, supra note 1, at 292.

[13] Id. at 289. 

[14] Id.  

[15] Id. at 289. 

[16] For additional information, see Ruth Levush, Israeli Law Guide (Nov. 24, 2007), LLRX.com, http://www.llrx.com/features/israel3.htm

[17] CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, 49(4) Piske Din (P.D.) 221, p. 329 (1995). 

[18] HC 4128/02 Adam Teva VeDin v. Israel’s Prime Minister, available at The State of Israel, The Judicial Authority website (in Hebrew), http://elyon1.court.gov.il/files/02/280/041/A16/02041280.a16.pdf (last visited Mar. 8, 2010). 

[19] Id. p. 514. 

[20] Id. pp. 515-16. 

[21] Basic Law: Human Dignity and Freedom, Sefer HaHukim (Official Gazette, hereafter S.H.) No. 1391, p. 150 (5752- 1992).  See also the Knesset (Israel’s Parliament) website, http://www.knesset.gov.il/laws /special/eng/basic3_eng.htm (last visited Mar. 8, 2010).  

[22] HC 4128/02 Adam Teva VeDin v. Israel’s Prime Minister. 

[24] Citizenship and Entry into Israel Law (Temporary Provision), 5763-2003, S.H. No. 1901, p. 544. 

[25] HCJ 7052/03, Adalah v. Minister of Interior, summary notes. 

[26] Basic Law: Human Dignity and Liberty, S.H. No. 1391 (5752-1992). 

[27] HCJ 7052/03, Adalah v. Minister of Interior.  

[28] Id. para. 73. 

[29] Id.  

[30] Id. para. 71.  

[31] Alexander Somek, Deadweight of Formulae: What Might Have Been the Second Germanization of American Equal Protection Review, 1 U. Pa. J. Const. L. 284 (Fall 1998). 

[32] For further information on the Israeli legal system and the impact of foreign law on the system in general, see Ruth Levush, The Reception of Legal Systems- Implantation and Destiny, in La Reception des Systems Juridiques: Implantation et Destin 411 (Michel Doucet & Jacques Vanderlinden eds., Buxelles 1994). 

[33] Somek, supra note 31.

[34] The State of Israel: The Judicial Authority, Foreign Clerkships with the Supreme Court of Israel, http://elyon1.court.gov.il/eng/Clerking_opportunities/frameset.html (in English) (last visited Mar. 16, 2010). 

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Last Updated: 02/28/2014